MAKHAN GOPE Vs. PRASAD GOPE

JUDGEMENT

(1.) THIS application by defendant respondents in Second Appeal No. 922 of 1966 for review of the Judgment of Mahapatra, J., passed in that appeal on the 18th July. 1968 has arisen under these circumstances. An award is said to have been made by the Panchas in respect of the disputed property. According to the case of the plaintiff opposite party, the dispute between him and the petitioners had been referred to arbitration by an arbitration agreement; an award was made. The opposite party filed Title Suit No. 25 of 1959 for the filing of the award and for a decree in accordance with it. The petitioners objected and asked the court to set aside the award, inter alia, on the ground that they had not entered into any arbitration agreement. The trial court in the first instance accepted their case and dismissed the suit. On appeal by the opposite party, the case was remitted back to the trial court. After remission, on rehearing, the plaintiff succeeded. The suit was decreed after rejecting the objection of the petitioners in the award. A judgment was passed directing the drawing up of a decree in accordance with the award. The defendants went up in appeal before the lower appellate court. The lower appellate court allowed the appeal, set aside the award and accordingly the judgment directing the passing of a decree upon its basis was also set aside. The plaintiff opposite party came up to this Court in Second Appeal No. 922 of 1966.

(2.) IT would appear from the judgment of Mahapatra, J. in the second appeal that it was argued on behalf of the plaintiff-appellant that in view of the provision of law contained in Section 17 of the Arbitration Act, 1940 (hereinafter called the Act) the appeal filed by the defendants in the lower appellate court was not competent. This argument was rejected by the learned Judge on the ground that the judgment of the lower appellate court consisted of two parts-- one was in regard to the question of the validity of the award and the other as to whether a decree ought to have followed; hence the appeal was competent. Entertaining the second appeal in this Court, however, the learned Judge in the last paragraph of his judgment was pleased to note that the lower appellate court did not consider many facets of the case which, when considered, would not necessarily have resulted in reversal of the final judgment of the trial court. In this view of the matter, the second appeal was allowed and the case was remitted back to the lower appellate court.

(3.) LEARNED counsel for the opposite party submitted that in support of the question that a second appeal in such circumstances was maintainable there is another judgment of the same very learned Judge in Minalal Mundhra v. Smt. Anchi Devi. AIR 1965 Pat 66. That being so, it cannot be said that when the second appeal was entertained by the learned Judge and allowed, any error was committed or in any event an error of the kind was committed, which would justify the allowing of the civil review. I have no difficulty in rejecting this argument. On the special facts of that case it was held that the second appeal was competent as some modification of the award was involved in it and the decree made was not in accordance with the award but was in accordance with the modified award. The question was whether such a decree was a good decree. The learned Judge had also observed in that case that even if the second appeal was incompetent interference could be made in exercise of revisional powers of this court. The observation of the learned Judge in paragraph 11 of the Judgment to the effect that-