SUBHASH CHANDER Vs. GHANSHAYAM DASS AND OTHERS

JUDGEMENT

(1.) This revision petition is directed against the order dated 24.04.1990 by which appeal filed by respondent no.1 Ghanshayam Dass against the order dated 27.07.1988, by which award of the Arbitrator was made rule of the Court, has been allowed.

(2.) As per the facts narrated by learned counsel for the petitioner, a pre-emption decree was passed in favour of the respondents on 28.09.1982 against which he had preferred an appeal. During the pendency of that appeal, both the parties entered into an agreement on 28.11.1982 at their own for the purpose of referring the dispute to the Arbitrator. The Arbitrator announced his award as per which respondent no.1 was to give INR 14,000.00 to the petitioner and thereafter he was to withdraw his appeal. However, respondent no.1 did not abide by the award and rather filed objection when the application was filed by the petitioner for making award of the Arbitrator rule of the Court. The said objection was dismissed by the Trial Court on 27.07.1988 against which respondent no.1 filed his appeal. The petitioner has been non-suited by the lower Appellate Court only on the ground that as per Sec. 21 of the Arbitration Act, 1940 (here-in-after referred to as the "Act"), the parties had no jurisdiction to refer the matter to the Arbitrator as the reference could have only be made through the Court.

(3.) Learned counsel for the petitioner has argued that once there was an agreement between the parties on 28.11.1982 for referring the matter to an Arbitrator in which respondents no.6 and 7 were also entered as guarantors, award was passed as per which INR 14,000.00 were to be paid by respondent no.1 to the petitioner so that the matter could have been settled between the parties by withdrawing the appeal filed against the judgment and decree dated 28.09.1982, but due to dishonest intention of respondent no.1, the petitioner had to file the application under Sec. 34 of the Act which too was allowed, but he has been non-suited only on the technical ground that the Arbitrator could have been appointed only through the Court and not by the consent of both the parties.