SASHI PRASAD Vs. BALESHWAR PRASAD MANDAL

JUDGEMENT

(1.) THIS application in revision has been filed by the defendants 1st party and raises an important question of law.

(2.) IN order to appreciate the question raised before me, it is necessarv to state briefly the relevant facts. A proceeding was started in the Court of the Munsif at Bhagalpur by the plaintiffs in representative capacity for filing an award by the defendants 2nd party and making the same a rule of the Court. It appears that some dispute arose between the parties regarding the nature of the user of plot Nos. 888 and 889 of village Sabour. The case of the plaintiffs was that these plots were being used as a play ground by the children of the village and the defendants 1st party wanted to take forcible possession of the same on the basis of some settlement from the ex-landlord. This resulted in proceedings under Sections 107 and 144 of the Code of Criminal procedure between the parties. The dispute was ultimately agreed to be decided by arbitration and the defendants second party were appointed arbitrators and authorised to settle the dispute between them. The further case of the plaintiffs is that the arbitrators made local inspection of the land in dispute in presence of both parties, took down their statements and examined witnesses and after due deliberation gave their award-The petition filed by the plaintiffs was registered as a regular title suit and treated as a plaint. On 7-2-1963. defendants Nos. 1 to 3 (defendants first party) entered appearance and filed a petition stating that they had no knowledge of the award and the award, if anv. was illegal and asainst the principles of natural iustice. The above petition was filed by them even before the service of notice upon them. On 3-5-1963, the Court ordered for issue of notice to the defendants 2nd party for filing the award in Court, and the award was actually filed by them on 27-6-1963. It further appears that on 22-7-1963, the defendants first party filed an application in the Court below for converting the title suit as a Miscellaneous case under the Arbitration Act and for issuing the statutory notice to them along with the copy of the award filed by the defendants 2nd party. By order dated the 31st July 1963. the trial Court rejected the objection and held that the controversies between the parties could be gone into only in a title suit. No order was passed for issue of notice of the filing of the award by the arbitrators. Thereafter a written statement was filed by the defendants 1st party on 19-11-1963, which was accepted.

(3.) BEFORE the appellate court a preliminary obiection was taken on behalf of the plaintiffs regarding the maintainability of the appeal itself. This question has been disposed of along with the decision of the main appeal itself. It has recorded the following findings: