RAGHUNANDAN RAI Vs. SUKHLAL RAI

JUDGEMENT

(1.) THIS appeal is directed against an appellate order of Mr. Naqui Imam, District Judge, Muzaffarpur, dated the 20th May, 1949, remanding the case to the Court of first instance for disposal after taking evidence in the case.

(2.) THE plaintiff filed a suit on the 5th of December, 1947, for certain reliefs, and on the 7th of January, 1949, he filed a petition that the dispute had been settled out of Court by arbitrators with the consent of both parties and prayed that a decree be passed in terms of the award under Order 23, Rule 3, Code of Civil Procedure. THE defendants denied the allegation of the plaintiff and contended that the award is illegal and fraudulent and that the Court had no jurisdiction to order the suit to be disposed of in terms of the award without their consent. THE trial Court, without taking any evidence on the merits of the allegations of the parties, held that, as there was objection by the defendants to the recording of the compromise, it could not be given effect to in law. THEre was an appeal by the plaintiff, and the learned District Judge, without expressing any view as to the legality of the order and as to whether the Court had at all any jurisdiction to record the arbitration award as compromise under Order 23, Rule 3 of the Code of Civil Procedure when the same is objected to by one or the other party, sent the case back to the Court below with a direction that the parties be given opportunity to prove whether in fact consent was given by the defendants at the time when the reference was made. He held:

(3.) WE are satisfied that the learned District Judge committed an error of law in the exercise of his jurisdiction in making an order of remand without recording his views to the effect of the proviso of Section 47 of the Indian Arbitration Act. No useful purpose would be served by remanding the case to his Court for disposal according to law. Had he taken into consideration the effect of the proviso to Section 47 of the Indian Arbitration Act, he was bound to dismiss the application on the admitted fact alone that the award had not been filed with the consent of all the parties interest ed. His order is, therefore, set aside and the order of the trial Court restored. The Court will now proceed to hear the suit. The petitioner is entitled to his costs in this Court; hearing fee two gold mohurs.