GULAB BAI Vs. GULAB BAI

JUDGEMENT

(1.) THIS is a defendants' second appeal. On 26th June, 1945, the plaintiff Gulab Bai filed a suit for partition in the court of Munsiff Khandu, District Banswara. While the trial was going on, the parties referred their dispute to arbitration and filed a reference in court on 16th May, 1947. The arbitrators, who were three in number, submitted their award on 28th Feb. , 1948. On that day, the court passed an order saying that the award had been received, and that the parties be informed to hear the judgment. The case then came up on 2nd May, 1948, when the plaintiff Gulab Bai was present, but the defendant-appellants were absent in spite of service. The court, therefore, proceeded to pronounce the judgment according to the award. From that jugdment and decree, the defendants preferred an appeal to the learned District Judge, Banswara, who dismissed it holding that no appeal was competent. THIS is a second appeal from that judgment.

(2.) A preliminary objection has been raised that no appeal lies against a decree which has been passed in accordance with an award under Schedule 2, paragraph 16 of the Code of Civil Procedure, which was the relevant provision of law in force and governed the filing of an appeal in the present case. The learned District Judge was of the view that there was divergence of judicial opinion upon the point and he ultimately held that no appeal lay according to para 16 of the Second Schedule except in so far as the decree was in excess of or not in accordance with the award. I propose to leave this question undecided as learned counsel for the appellants has urged that even if the decree of the trial court were held to be unappealable, his appeal may be treated as a revision, and decided on that footing. Having given my careful consideration to this question, I have reached the conclusion that the trial court in this case acted illegally or with material irregularity in the exercise of its jurisdiction and, therefore, I propose to decide this appeal as revision.