NATHUNI PANDEY Vs. PARAS PANDEY

JUDGEMENT

(1.) DEFENDANT No. 1 has preferred this appeal. It arises out of the suit for redemption on the basis of a decree passed on an award in Title Suit No. 72 of 1944 of the Court of the Munsif 3rd Court, Arrah. The facts of the case, are that the suit land originally belonged to one Kuar Pandey. He died leaving behind a widow Mt. Rehmi. She came into possession of the land as a Hindu widow. She mortgaged it to defendant No. 2, Tilak Ahir, for Rs. 200/- on the 26th May, 1931. It appears that Mt. Rehmi died and defendant No. 3 Munshi Pandey as next reversioner obtained by inheritance the properties of Kuar Pandey and as such also acquired the equity of redemption in respect of the mortgaged properties. He entered into an agreement to sell the suit property to the plaintiff. The agreement for sale was a written but unregistered document dated the 5th February, 1944. On a subsequent date, however, Munshi Pandey, the reversioner, gifted the property again to defendant No. 1 on the 19th March, 1944. The plaintiff sought specific performance of the agreement for sale and being refused by Munshi Pandey brought a suit for specific performance of contract against Munshi Pandey and his donee, defendant No. 1 Nathuni Pandey, the present appellant. This was Title Suit No. 72 of 1944. The parties to the suit referred the matter to arbitration and the arbitrators under the award gave four bighas and odd of land to each of the parties, namely, the present plaintiff and defendant No. 1, the appellant in this Court. It was declared in the award that the parties would pay off half the encumbrance on the property in the shage of the mortgage dues of defendant No. 2.

(2.) THE plaintiff tendered THE mortgage amount to defendant No. 2 and he refused to accept it. The amount was accordingly deposited under Section 83 of THE Transfer of Property Act and THE present suit for redemption was brought by THE plaintiff. Defendant No. 3 Muushi Pandey was impleaded in this action and THE plaintiff asked for partition on payment of his share of THE money by defendant No. 1.

(3.) MR. K. C. Sanyal, who appears in support of the appeal, contended that the learned Subordinate Judge erred in his view in so far as he held that Section 32 of the Arbitration Act is a bar in the way of the defendant raising the pleas with regard to the validity of the award. Section 32, if anything, should act as a bar in the way of the plaintiff bringing, the present suit. The bar in law, therefore, should operate against the plaintiff and not against the defendant-appellant. He relied in support of his contention on a decision of this Court in the case of Ramchander Singh v. Munshi Mian, AIR 1950 Pat 48 (A), wherein it was held that the Act of 1940 (referring to Arbitration Act) was intended to and did alter the law, and one of the main objects of the Act was to provide that claims to set aside arbitration awards or challenge arbitration agreements should be made by application to Court and decided on affidavits or on other evidence if deemed expedient by the Court and not by means of a suit. What happened in that case was that a suit was brought by one of the parties to an arbitration agreement on which an award followed to realise a sum of Rs. 280/- with interest which was allowed to the plaintiff under the award. The defendants maintained that they had never referred the matter in dispute to any arbitration and that even if the award was genuine/ the plaintiff was not entitled to enforce the award since it was invalid and inoperative. This Court held that the suit of the plaintiff was barred under Section 32 of the Arbitration Act. MR. Sanyal contended that the view of their Lordships of this Court was that when the defendant raised the question with regard to the legality or operative ness of the award Section 32 would immediately come into play and the suit of the plaintiff should be held to be not maintainable. In my opinion, however, learned counsel is not correct- in this contention. What the plaintiff in the above case was seeking to do was to enforce a right which was granted to him on a private award. It appears that the award was never filed under Section 14 of the Arbitration Act, nor did any decree follow on foot of that award. In any case, the plaintiff himself alleged that there was an award under which certain rights accrued to the plaintiff. Their Lordships accordingly held referring to the various decisions of the different High Courts that in view of Section 17 of the Arbitration Act the suit was not maintainable. The observation of Chagla J. in the case of Ratanji Virpal & Co. v. Dhirajlal Manilal, ILR (1942) Bom 452: (AIR 1942 Bom 101) (B) is to this effect: