MOOLCHAND Vs. MANAKCHAND

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff Moolchand whose suit has been dismissed by the District Judge, Ajmer on the ground that it is not main-tainable under the provisions of the Arbitration Act No. 10 of 1940.

(2.) THE facts of the case may be stated within a short compass. THE respondent Manakchand obtained a decree for Rs. 8000/- against the appellant Moolchand from the Court of Sub Judge, First Class, Beawar on 10-5-1954 on the basis of an award dated 26-4-1954. This decree was subsequently amended on 30-12-1954. THE present suit was filed by Moolchand on 9-5-1955 for setting aside the decree dated 39-12-54 as being fraudulent, null and void. It was alleged in the plaint that the plaintiff Moolchand had neither executed any arbitration agreement in favour of the alleged arbitrator Shri Jagdish Prasad nor there had been any valid award against him. He stated that he was a servant of the defendant at his shop on a monthly salary of Rs. 35/- and had not borrowed any money from Manakchand. It was further alleged that he had not appointed Shri Mukand Chand Ranka as his counsel nor had signed Vakalatnama in the latter's favour nor he had made any application for amendment of the decree. THE plaintiff also alleged that he had not received any notice of the arbitration proceedings nor had ever appeared before the alleged arbitrator Shri Jagdish Prasad. THE plaintiff, it is alleged, got knowledge of the decree passed against him on the basis of the award only when he received a notice under O. 21, r. 66, Civil P. C. In short his case was that a complete fraud had been played upon him and the decree thus obtained by perpetrating fraud not only upon him but on the Court also was liable to be rescinded. THE averments made by the plaintiff' in the plaint were stoutly denied by the defendant Manak Chand in his written statement. After recording the evidence produced by the parties, the learned Civil Judge, Beawar by his judgment dated 30-5 1959 held that the decree obtained against the plaintiff Moolchand in civil suit No. 94 of 1954 by the Sub-Judge, First Class, Beawar dated 10-5-1954 and subsequently amended on 30 5-1954 was fraudulent, null and void and was inexecutable against the plaintiff. Consequently the plaintiff's suit was decreed and a perpetual injunction was granted against the defendant Manakchand not to execute the impugned decree against the plaintiff.

(3.) IN Nanick Lal Memani vs. Shiv Jute Bailing Ltd. (3) the learned Judge observed as follows - "that section (i. e. sec. 33) enjoins that a party to an arbitration agreement desiring to challenge the existence or validity of an arbitration agreement or to have the effect thereof determined must apply to the Court. This section proceeds on the basis of the factual or an apparent existence of an arbitration agreement and contemplates the case of a party to such arbitration agreement coming to Court and seeking to challenge its legal existence on the ground of mistake, fraud, misrepresentation, coercion, illegality or like grounds to be found in secs. 19 to 30 of the Contract Act. The case of Deokinandan Dalmia vs. Basanti Lal Ghanshyamdas (45 C. W. N. 881, 1941) decided by Lord Williams, J. , dealt with such a situation. But a person who alleges that he never entered into an arbitration agreement cannot possibly be said to be a part to an arbitration agreement so as to come within the purview of sec. 33. "