SITARAMJI MAHARAJ Vs. RAMNATH SINGH

JUDGEMENT

(1.) IN the suit out of which this appeal arises the plaintiff Sri Thakur Sitaramji Maharaj made a claim for partition of 6 annas 8 gandas share of tauzi No. 8485 of village Sahjapur. The suit was brought by the plaintiff through the Shebait Manohar Singh. The plaintiff prayed for a separate Patti of 6 annas 8 gandas share. Defendant No, I appeared in the suit on the 19th June, 1951, and both parties filed a joint petition on that date praying that the matter may be referred to arbitration, but no reference to arbitration was made by the court. On the 2nd September, 1951, the punches gave an award which was filed in court on the 6th September, 1951. According to the award, the deity had no share in the tauzi and the endowment was made by Manohar Singh and Ramnath Singh in order to defraud the creditors. The effect of the award was that the deity would have no share in the tauzi and the endowed properties would be treated as secular properties of the two brothers Manohar Singh and Ramnath Singh. On the 22nd September, 1951, the plaintiff filed an objection to the award, but the trial court treated the award as a compromise between the parties under the proviso to Section 47 of the Arbitration Act, which states as follows :

(2.) ON behalf of the plaintiff-appellant the first argument put forward is that the trial court should not have recorded the compromise under the proviso to Section 47 of the Arbitration Act because there was no consent given fay the parties after the award was made for treating it as a compromise between the parties or adjustment of the suit. It is not denied in the present case that, after the award was given, the plaintiff did not consent that the award should be treated as a compromise between the parties. ON the other hand, the plaintiff filed an objection to the award itself. In view of this admitted position, it is clear that the proviso to Section 47 of the Arbitration Act does not apply and the lower courts erred as a matter of law in regarding the award as a compromise petition and decreeing the suit in terms of the award. This view is borne out by the decision of this Court in Mohammad Abdur Razaque v. Abdul Majid, AIR 1957 Pat 656 where it is pointed out that an award made by an agreement between the parties but without the intervention of the Court in a pending suit cannot be recorded as an adjustment of the suit unless the Parties consented to the same after the award was made. Therefore, where instead of the parties consenting to it, one of them objected to it, the award could not be recorded either as a compromise or as an adjustment of the suit. The same view has been taken by an earlier decision of this Court in Raghunandan Rai v. Sukhlal Rai, AIR 1952 Pat 258. In view of this legal position we are of opinion that the trial court committed an error of law in recording the compromise, and the decree of the trial court and also of the appellate court should be set aside.