DAMADAR GULABRAI BELANI Vs. METHARAM C KHAHTWANI

JUDGEMENT

(1.) THIS is a revisional application on behalf of the original plaintiffs against the decision of the Full Court of the Court of Small Causes dated February 11, 1964, whereby the Full Court dismissed the plaintiffs' Full Court Application No. 51 of 1961 on the ground that the decree challenged was passed in terms of the award and that against such a decree a Full Court Application was not maintainable under Section 38 of the Presidency Small Cause Courts Act.

(2.) THE facts which require to be noticed are as follows:-One Gulabrai Kalyandas Belani prior to his death carried on business of warehousing and clearing agents in the firm name and style of Sindhi Clearing Agency. The opponent (original defendant) was employed in the above business by Gulabrai inter alia to recover amounts due to the Sindhi Clearing Agency. The petitioners are heirs of Gulabrai. The petitioners' case was that the opponent had recovered Rs. 1,660 from the debtors of the Sindhi Clearing Agency and had not accounted for the same. This sum had become due after Sept. 1, 1953. In connection with the misappropriation of the above amount by the opponent, a prosecution was launched against the opponent. That prosecution was compromised. The opponent then executed a writing dated August 21, 1955. The writing inter alia states:

(3.) BY an affidavit dated February 4, 1961, filed in the above suit, the petitioner stated that the arbitrator erred in holding that the cause of action arose on the basis of the writing. The suit was filed on the original cause of action viz. moneys had and received. The writing of the defendant was relied upon to show the correctness of the amount due and as an acknowledgement of liability to pay the amount the award of the arbitrator was based upon incorrect position of law assumed by the arbitrator. This affidavit may be taken to be the petition of the plaintiffs for setting aside of the award. The trial Court dismissed the petition by observing that the award was not erroneous as contended by the advocate of the plaintiffs. The arbitrator had taken into consideration all facts and "had come to conclusion and given the award. The arbitrator was the sole Judge of the facts and law and the award had been properly given. "