BHOLANATH CHATTERJEE Vs. CHANDRA SHEKHAR BHATTACHERJEE

JUDGEMENT

(1.) THIS rule was obtained by the de -fend ant against an order of the Munsiff of Dubrajpur, District Birbhum, dated 28th September 1948. By the said order the learned Munsiff overruled certain objections taken by the defendant to the filing of the award made on a reference through the intervention of the Court and also directed that a decree be drawn up in terms of the award. The petitioner in this case did not file an appeal under Section 17, Arbitration Act because it is stated before me there was no ground for such an appeal. The complaint of the petitioner is against the order of the Munsiff over -ruling his objections to the filing of the award. An appeal lies against such a decision, under Section 39(1)(vi), Arbitration Act. It is not disputed on behalf of the petitioner that ordinarily such an appeal was competent. What is contended for is that the appeal was not competent in this case because by the same order which overruled his objections to the filing of the award the learned Munsiff directed a decree to be passed in terms of the award.

(2.) IN my opinion the fact that by the same order the Munsiff overruled the objections to the filing of the award and also directed a decree to be passed in terms of the award does not take away the right of the aggrieved party to file am appeal in accordance with the provisions of Section 39. This view is supported by the decision in the case of Sheocharan Mahton v. Sanichar Mahton, A. I. R. (35) 1948 Pat. 207 : (26 pat. 115). Before the enactment of the Indian Arbitration Act 1940, under the analogous provision of the Code of Civil Procedure where an appeal lay against an order filing or refusing to file an award under Section 104(f), Civil P.C., in cases where the arbitration was not through the intervention of the Court, the mere fact that the objections to the filing of such an award were overruled by one and the same order by which a decree was also passed in terms of the award did not preclude the party aggrieved by such an order from availing himself of the right of appeal which he had under Section 104(1)(f), Civil P. C. (See the cases of Kshetra Nath v. Ushabala Dasi, 18 C.W.N. 381 : (A. I. R. (1) 1914 Cal. 899) and Troilokya Nath v. Sukumar Base : AIR1941Cal202

(3.) THIS order will not however stand in the way of the petitioner preferring any appeal which he may choose to file against the order of the proper Court.