KANHYALAL VISHWESHWARLAL MAHAJAN Vs. RAMCHANDRA SHANKARRAO HOLKAR

JUDGEMENT

(1.) THE facts giving rise to this second appeal lie within a narrow compass.

(2.) THE estate of the respondent Ramchandra Holkar consisting of a forest coup was under the management of Court of Wards in the year 1943. The appellant kanhaiyalal took the forest coup for exploitation from the Court of Wards on the basis of a contract. Disputes arose regarding the alleged acts of trespass and unauthorised ousting of the trees outside the limits of the area allotted to the appellant. The appellant denied the alleged cutting outside the limits of the area covered by his contract. The dispute was referred to arbitration of the then divisional Forest Officer Mr. Tiwari. He gave his award whereby the respondent was awarded Rs. 3000/- for the unauthorised cutting found and estimated by him. The appellant Kanhiyalal did not accept the award. Thereupon the respondent filed the suit on the basis of the award and also upon the original cause of action claiming Rs. 3315/ -. The suit was contested by the defendant. But the Court granted a deerce on 8-1-1948 limiting it to the amount awarded by the arbitrator overruling the appellant's objections regarding the existence and validity of the award. No appeal was preferred by the appellant against that decree and it therefore outwardly became final and conclusive. The respondent ramchandra thereupon filed an execution petition for the enforcement of that decree. The appellant again challenged the validity of the decree on 24-2-1949 on the ground that the Court granting the decree had no jurisdiction to do it. This objection was overruled by the executing Court. It held that the plaintiff's suit was not barred under Section 32 of the Arbitration Act.

(3.) SECONDLY he held that the legal position had not crystallised at the time the suit was filed and Madras High Court in a case reported in AIR 1945 Mad 371 Rashid tamshed Sons and Co. v. Moolchand Totnajee, had held that such a suit was competent. It could not therefore be said that the decree was void ab initio even if it had been granted on an erroneous view of law.