PRASAD GOPE Vs. MAKHAN GOPE

JUDGEMENT

(1.) PLAINTIFF is the appellant. He initiated a proceeding under Section 14 (2) of the Arbitration Act, 1940, on the 14th March, 1959. In pursuance of an order passed by the Court, the award was filed on the 22nd April, 1959. The defendants-respondents appeared and filed a written statement on the 8th June, 1959, in which they had made several allegations against the plaintiff and the award. One of the contentions raised there was that there was no reference to arbitration and the two documents showing arbitration agreement had been fabricated by the plaintiff. Ultimately the court passed judgment on the 28th February, 1962 against the appellant holding that there had been no reference to arbitration and the two documents (Exs. 5 and 5/a) had not been executed for that purpose by the defendants. There was an appeal against that by the present appellant in title appeal no. 63/15 of 1962/63 in which the judgment of the court below was set aside and the case was remanded for fresh disposal. This time the learned Munsif passed a judgment in favour of the appellant and drew up a decree in accordance with the award on the 26th February, 1966, Against that the defendants' took an appeal in which they succeeded. That is why the present second appeal has been filed by the plaintiff.

(2.) LEARNED counsel appearing for the appellant first raised a point that the defendants' appeal in the court below was not competent, inasmuch as, decree having been passed in accordance with the award, no appeal could be preferred against that as provided under Section 17 of the Arbitration Act. Section 17 states:

(3.) LEARNED counsel for the appellant, however, disputed this position and drew my attention to the case of Minalal Mundhra v. Smt. Anchi Devi, (AIR 1965 Pat 66). There the question that arose for decision was whether a second appeal would lie out of an appeal which was permissible under Section 17 of the Arbitration Act, What would be considered to be an application, under Section 33 was not the point at issue in that case and observations made in that judgment are to be taken in the context of the facts of that case. If the judgment passed by the court on the 26th February, 1966, is to be taken as one including an order refusing to set aside the award, the defendants would be entitled to make an appeal against that under Section 39, Clause (i), Sub-clause (vi) of the Arbitration Act No doubt, Section 39 speaks of appeal from orders passed under the Act, but that will equally apply to a judgment which is taken to contain an order setting aside or refusing to set aside an award.