MISRI LAL YADAV Vs. PARMESHWAR YADAV AND OTHERS

JUDGEMENT

(1.) The second appeal and the civil revision application both arise out of the same order the learned district Judge, Monghyr, passed in Title Appeal No. 74 of 1966, reversing a decision of the Munsif, Second Court, Monghyr, and remanding the suit with a direction to give notice to both the parties and then to give them the requisite time for filing objections and thereafter decide the case in accordance with law. The civil revision application has been filed only by way of precaution, and, therefore, both of them will be decided by this judgment. The plaintiff, who is the appellant -petitioner in this Court, filed Title Suit No. 140 of 1963 in the court of the Munsif, Second Court, Monghyr, for declaration of Title and recovery of possession over the suit land as described in the schedule attached to the plaint along with the tree standing thereon. The plaintiff also prayed for a permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the suit land. The suit land is one katha out of fourteen kathas of plot no. 1909 in Mahalla Sherpur Kemkha in the town of Monghyr along with a Neem tree. On service of summons, the defendants appeared in the suit and filed two sets of written statement. On the 3rd September, 1965, both the parties filed a joint petition before the court for referring their entire dispute which was the subject -matter of the aforesaid suit to the arbitration of the punches jointly chosen by them, and the learned Munsif was pleased to refer the case to the arbitration of the said punches as mentioned in the joint petition of the parties. The punches, accordingly after deliberations, gave the award on the 30th Jane, 1966, and the said award was filed in the court by the arbitrators on the 4th July, 1966. On the 6th of July, 1966, the date fixed in the suit, both the parties filed their hazries. The learned Munsif directed them to file objection, if any, against the award on or before the 18th July, 1966. On that date, both the parties filed their hazries, but neither party filed any objection to the said award. The learned Munsif accepted the award and decreed the suit in terms of the said award. The decree was prepared on the 28th July, 1966.

(2.) The defendants, who are the respondents -opposite party in this Court, filed an appeal against the said decree before the District Judge of Monghyr on the 30th August, 1966. The appeal was preferred mainly on the ground that the award was not according to the terms of the agreement incorporated in the joint petition of the parties. The appeal was called cut for hearing on the 16th September, 1967, and it was heard in full, and 18th of September, 1967, was fixed for judgment. The learned District Judge, while going through the records of the case, found that the learned Munsif had not granted the requisite time for filing objection to the award after it was filed before him. This fact was brought to the notice of the lawyers of the parties, and they prayed for time to argue on this point. The appeal was again heard on the 21st September, 1967, and judgment was delivered on the 26th September, 1967. The learned District Judge held that the learned Munsif waited only for fourteen days and not for full period of thirty days as required by law and, as such, the decree was without jurisdiction. The learned District Judge further held that the appeal against the decree was maintainable, and, he could interfere with the decree passed by the learned Munsif.

(3.) On behalf of the appellant, who is the plaintiff, the only contention is that no appeal lay to the District Judge. On behalf of the respondents, it is contended that the appeal before the District Judge was competent, and, even if no appeal lay to the District Judge, he had passed a proper order, such as the court would have passed and, therefore, this Court should not interfere. The main question for consideration is whether an appeal lies under Sec. 17 of the Arbitration Act, 1940 (X of 1940), hereinafter referred to as 'the Act', from the decree of the learned Munsif when it is not in excess of, or not otherwise in accordance with, the award. Sec. 17 of the Act runs as follows: