SUSHILKUMAR NEMKUMAR PORWAL Vs. NEMKUMAR KESRIMAL PORWAL

JUDGEMENT

(1.) THIS Civil Revision Application has been filed challenging the order dated 29th March 1997 passed by the 4th Joint Civil Judge, Senior Division, Nagpur in M. J. C. No. 47/1993. It appears that there were some disputes among the members of the family who are joined as party in this application either as petitioner or as respondents. The parties arrived at an agreement to refer their disputes to an Arbitrator, who was a sole arbitrator. The sole arbitrator made an award dated 28th August 1992 and filed it in Court which was registered as S. C. S. No. 998/92. It further appears that in S. C. S. No. 998/992, all the parties, who were parties to the arbitration agreement, filed consent terms and on the basis of those consent terms, the award was made Rule of the Court by order dated 28th December 1992. An application was filed by applicants Nos. 1 to 5 before the civil Judge, S. D. , Nagpur, which was registered as M. J. C. No. 47 of 1993. This application was filed under sections 30 and 33 of the Arbitration Act for setting aside of award followed by decree. It further appears that out of the five applicants, who filed the application on 8th March 1993 viz. , present non-applicants Nos. 3, 4 and 5 were transposed as non-applicants subsequently in M. J. C. No. 47 of 1993.

(2.) IT further appears that in M. J. C. No. 47/1993, on 18-12-1996, the non-applicant Nos. 1 and 2 filed an application for setting aside the decree on the ground that the decree is nullity. This application is marked at Ex. 188 on the record of the trial. It was prayed by that application that the Court should set aside the impugned decree passed pursuant to the order dated 18-12-1996 Court as null and void, illegal and invalid. This application at Ex. 188 was decided by the 4th Jt. C. J. ,s. D. Nagpur by order dated 29th march 1997. The learned trial Court allowed the application at Ex. 188, set aside the decree and the entire proceedings in M. J. C. No. 47 of 1993 were disposed of. It is this order dated 29-3-1997 which is impugned in this C. R. A.

(3.) SHRI Bhangde, the learned counsel appearing for the applicant urged that the Court has observed that the order setting aside the decree has been passed by the Court on an application filed under sections 30 and 31 of the arbitration Act. In the submission of Shri Bhangde, however, in proceedings initiated under sections 30 and 31 of the arbitration Act, a decree passed by the Court cannot be set aside. He further submitted that the Court has set aside the decree by holding that the filing of the award was not proper and that the Court did not give notice to the parties before passing decree. In the submission of Shri Bhangade, however, the Arbitrator is competent to file an award in the court on his own motion. He further submitted that it was not necessary for the Court to issue any notice to the parties because the parties on their own appeared before the court and filed the consent terms. Shri Bhangde, for the proposition that an award can be filed by the arbitrator himself suo motu, relied on a judgment of the Supreme Court in the case of State of M. P. vs. M/s Saith and Skeleton pvt. Ltd. , 1972 (1) SCC 702. Shri Bhangde also relied on a judgment of the Supreme Court in the case of Bahadur Singh vs. Muni Subrat reported in 1969 (2) SCR 432, in support of this submission that as the parties on their own have appeared before the Court and filed consent terms the decree does not become invalid because the Court has not issued notice to the parties.