BISNATH Vs. BASTIMAL

JUDGEMENT

(1.) THIS is a revision by the defendant against the order, dated 20-11-19r5, passed by the Additional District Judge, Rajnandgaon in civil appeal No 12-A of 1965. reversing the order, dated 29-4-1965, passed by the Civil Judge Class II, khairagarh in civil suit No. 40-A of 1964, passing a decree in terms of an award as a compromise under Order 23. Rule 3, Code of Civil Procedure.

(2.) THE respondent filed a suit for possession of certain agricultural lands. During the pendency of the suit, the parties, without reference to the Court, agreed to refer their dispute to the arbitration of certain Panchas who delivered an award on 23-10-1964. The award was signed by the respondent with an endorsement that he was accepting the same. The petitioner merely put his signature without any endorsement of acceptance or refusal. Subsequently the petitioner filed his written statement in Court on merits and thereafter prayed that the award, which had been consented to by the parties, should be made a rule of the Court by treating it as a compromise between the parties under Order 23, Rule 3, Code of Civil procedure. That suggestion was opposed by the respondent, and the trial Judge held that it could be recorded as a compromise. However, the learned appellate judge took the contrary view and remanded the case to the trial Court for trial on merits.

(3.) THIS case involves the interpretation of the proviso to Section 47 of the arbitration Act, 1940. It may be pertinent to reproduce the Section itself which is as follows: "subject to the provisions of Section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder: provided that an arbitration award otherwise may with the consent of all the parties be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending". As regards consent, there are differing views expressed in some cases which I propose to refer to presently. But as the wording of the proviso indicates, the consent of all the parties interested must be for taking the award into consideration as a compromise or adjustment. Mere consent to the award is not material for purposes of the said proviso.