INDRAMONI MOHAPATRA Vs. NILAMONI MOHARANA

JUDGEMENT

(1.) THE petition ig directed against an order of remand passed by Sri B. C. Das, District Judge of Cuttaok-Dbenkanal, in Miscellaneous Appeal No. 87 of 1948, reversing an order dated, 4th qetober 1948 of Sri B. S. Patnaik, Additional Subordinate Judge of Cuttack, in Money Suit No. 8/342 of 1948/47. THE suit was for recovery of Rs. 2193-12-0 being the sum borrowed with interest accrued thereon, under two handnotes executed by the opposite party in favour of the petitioner. THE defendant resisted the suit, while accepting that the hand-notes were genuine and for consideration, with a plea of payment. THE material date on which and since when the events giving rise to this application occurred is 3rd July 1948. On that date, the plaintiff was ready to go on with the hearing of the suit, and filed a list of witnesses. THE defendant interposed a plea, as a barrier to the suit, by a petition purporting to be one undtr Order 23, Rule 3, Civil P. C. for recording as a compromise an award given in an arbitration oat of and without the intervention of the Court, on a reference made during the pendency of the suit. THE plaintiff, took exception to the plea on 27th September 1948. On the date, next following, that is, on 29th September 1948, the learned Additional Subordinate Judge heard the parties and was of opinion that the plea of accord and satisfaction taken by the defendant on the basis of the award obtained pending suit on an arbitration without the intervention of the Court was not available to the defendant and set down the case for hearing on merits.

(2.) THE defendant took up an appeal against the order. THE District Judge reversed it with an order of remand for reconsideration of the defendant's application on merits, in the light of his observations set out therein. THE substance of his observation was embodied in the following passage quoted from his order :

(3.) THE defendant's contention, however, in the present case is that supported by the anticipatory consent given at the time of submission the pleaded award concludes the suit effectuating as it does a final adjustment and compromise of the subject matter and must a decree in terms thereof follow. In other worda, the un-willing plaintiff shall not be heard to countermand his consent--there being open no other point for its consideration "as an award".