MATHURA PRASAD GUPTA Vs. MOSAMMAT MANOHRI KUER

JUDGEMENT

(1.) THIS appeal is directed by the plaintiffs of a partition suit against an order dated 6th February 1962, of the 1st Additional Subordinate Judge of Muza-ffarpur rejecting the objection to an award and refusing to set aside the same, under Section 30 of the Indian Arbitration Act, 1940. The concluding portion of the impugned order reads as follows :--

(2.) THE appellants and the respondents belonged to a joint Mitakshara family and the plaintiffs appellants instituted a suit for partition on the ground that defendant No. 1, Gokhul Prasad Sah (who died on 19th September, 1953 and in whose place his widow was substituted) refused the request of the plaintiffs for an amicable partition of the joint family assets and to give an account of the income and expenditure of the family assets. THEre were two sets of defendants and two sets of written statements were filed by them. On 10th April, 1954, the parties filed an application to refer the dispute to arbitration. On 21st July, 1954 the learned Subordinate Judge passed an order directing the office to send the papers to the umpire for submitting the award by 13th September, 1954 on filing the requisites at once. Probably, the word 'umpire' was used, because one of the two arbitrators appointed, namely, Babu Baijnath Prasad of Bairgania was described as Sarpanch and the other arbitrator, namely, Babu Ramchandra Prasad of Bairgania was described as Panch in the petition dated 10th April, 1954. THEre was some delay by the parties in filing copies of pleadings and, therefore, on 13th September, 1954 the Subordinate Judge passed an order directing that the papers be sent to the arbitrators for submitting the award by 15th November. 1954. THE next order dated 15th September, 1954 shows that the arbitrators filed an unstamped petition stating that they had no objection to decide the case, and then the Subordinate Judge issued the order of reference. As the award was not filed on the 15th November, the court below extended the time for submission of the same to 16th December, 1954, when time was further extended to 24th January, 1955. On this date, the plaintiffs filed a petition praying to reject the reference to arbitration and for fixing a date for the hearing of the suit. After hearing the lawyers for both the parties, the court again extended the time for submission of the award to 15th February, 1955. and a copy of that order was directed to be forwarded to the arbitrators. On 15th February, the arbitrators filed a petition praying for two months' time to file their award along with a yaka-latnama. THE plaintiffs filed a rejoinder petition. After hearing the lawyers for the parties and the arbitrators, the court extended the time for submission of the award to 24th March, 1955. on which date the arbitrators again filed a petition praying for two months' time; and after hearing the lawyers for the parties, the court extended the time for submission of the award to 23rd May 1955. THEre is no order in the order sheet from 23rd to 25th May 1955, and the next order is dated 26th May, 1965, when the award was filed. On that date, the plaintiffs also filed a petition praying to recall the writ from the arbitrators, as they had done no work; but the court directed the parties to file objection, if any, to the award by 27th June, 1955. on which date the plaintiffs filed objection and the same was heard and disposed of by the court below by the impugned order. It may be mentioned here that in the list of holidays for the civil courts in the State in 1955, 24th to 26th May were declared to be holidays on account of Id-ul-Fitr, subject to a note that if the moon be visible on 22nd May, then the holidays for Id-ul-Fitr would be from 23rd to 25th May. In view of the fact that there is an order dated 26th May and there is no order on 23rd May, it is apparent that the civil Court were closed on account of Id-ul-fitr from 23rd to 25th May, Mr. Balbhadra Prasad Singh, who appeared for the appellants, did not dispute this fact.

(3.) IF the provisions of sections 17 and 39 were examined independently of the decisions, we arrive at the same conclusion. The scope of an appeal under Section 17 is very limited, inasmuch as it lays down that, when the court pronounces a judgment according to an award and upon the judgment so pronounced the decree follows, no appeal shall lie from such decree "except on the ground that it is in excess of" and "not otherwise in accordance with the award". The portions quoted indicate the limited scope of an appeal under Section 17. This limitation cannot, however, control the scope of an appeal under Sub-section (1) of Section 39 of the Act, which does not contain any limitation. IF Mr. Mukherii's arguments were accepted, on account of a complete order passed by the court under Section 39, a valuable right of the party dissatisfied with such an order would be taken away and the object of the legislature in enacting Section 39 of the Act would be defeated. In view of the foregoing discussions, the preliminary objection raised by Mr. Mukherji fails.