AJAY KUMAR Vs. RAJESH KUMAR

JUDGEMENT

(1.) The defendants have filed this First Appeal under section 96 of the Code of Civil Procedure against the judgment and decree dated 22.08.1985 passed by Subordinate Judge, Sitamarhi in Partition Suit No.36 of 1980.

(2.) The plaintiff-respondent filed the aforesaid Partition Suit No.36 of 1980 claiming partition of the suit property. During the pendency of the aforesaid partition suit both the parties jointly filed an application on 26.07.1984 praying for referring their dispute to the Arbitrator named by them Sri Nagendra Sah. The said application was heard by the court and by terms of order dated 26.11.1984, after hearing both the parties, referred the dispute of the parties regarding the subject matter of the suit to the Arbitrator, Nagendra Sah. The court also directed the parties to file the necessary documents for handing over the same to the Arbitrator. After entering into reference, the Arbitrator made award which was filed by the Arbitrator in the court on 13.06.1985. On which date, the defendant was present. The court directed that the parties will be heard on the report on 08.07.1985. On which date, again the defendant No.1 was present. No objection was filed by any one and ultimately after next two dates, on 22.08.1985, the court below accepted the award and directed to prepare decree.

(3.) The learned counsel, Mr. Vaidehi Raman Prasad Singh for the appellants raised many grounds challenging the illegality of the award and the order passed by the trial court. However, the learned counsel, Mr. L.N. Das appearing on behalf of the respondents raised a preliminary objection regarding the maintainability of this first appeal under section 96 of the Code of Civil Procedure. According to the learned counsel, Mr. Das, neither this first appeal under Section 96 C.P.C. nor miscellaneous appeal under section 39 of the Arbitration Act is maintainable because no objection to the arbitral award was filed by the appellants.