RAJMAL GIRDHARLAL MARWADI Vs. MARUTI SHIVRAM

JUDGEMENT

(1.) The plaintiff sued to enforce an award against the defendants. Various issues were raised in the trial Court. The 4th issue was-Is the suit barred by limitation? The trial Court held that the suit was barred. It proceeded to find on the remaining issues. The result was that the suit was dismissed.

(2.) In appeal the learned appellate Judge hold that the suit itself was not barred by limitation, but that it was barred by the rule of res judicata. It appears that the award was made on the 28th November 1910. The plaintiff then applied to file the award under para 20 of the Second Schedule to the Civil Procedure Code. That application was rejected on the 12th January 1914. The plaintiff could appeal against that order under Section 104 of the Civil Procedure Code. The plaintiff did appeal to the District Court, and also applied to the High Court in revision, but in both Courts the lower Court s decision was upheld.

(3.) It has now been argued that the question whether the plaintiff is entitled to get a decree on the award is res judicata and this suit was therefore barred. It can only be res judicata if the application to file the award can be considered as a suit. No doubt the application under para 20 of the Second Schedule to the Civil Procedure Code is numbered and registered as a suit. But it does not follow that it thereby becomes a suit within the meaning of the word suit in the Code. The procedure followed is not that of a suit, but the procedure regulated by para 21. The Court can only consider whether any ground such as is mentioned or referred to in para 14 or 15 is proved, and the Court has power either to order the award to be filed or to refuse to file the award. If it orders the award to be filed, then it must pronounce judgment according to the award, and upon the judgment so pronounced the decree shall follow. Under Section 11 of the Civil Procedure Code no Court shall try any suit or issue in which the matter directly and substantially in issue his been directly and substantially in issue in a former suit between the same parties. It cannot be said that the proceedings under paras 20 and 21 of the Second Schedule were proceedings in a suit, though for the purposes of convenience they may be numbered and registered as a suit. Order IV refers to the institution of suits. Rule 1 says that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. Then the following Orders refer to the issue and service of summons and the proceedings that must follow when a regular suit has been instituted. This question was decided in Kunji Lal v. Durga Prasad (1910) I. L. R. 32 All. 484 in which the Court felt itself bound to follow the series of decisions of its own Court, although the learned Judges seemed to think that there were some expressions in the case of Ghulam Khan v. Muhammad Hassan (1901) I. L. R. 29 Cal. 167, P. C. from which it might be considered that their Lordships of the Privy Council were of opinion that an order made under old Section 525 was a decree. No doubt a decree can be made when the Court pronounces judgment on the award, and there being no appeal against that, the question whether a suit could be filed to enforce the award would never arise. An order refusing to file an award is a different matter. It cannot be considered as a decree. In my opinion, therefore, this suit is not barred by res judicata. It is not barred by limitation, because it seems to be settled now that a suit to enforce an award is a suit not provided by any other article of the Limitation Act. Then the time is six years under Article 120. The appeal therefore must be allowed and the case remanded to the lower appellate Court for decision on the remaining issues. The appellant must get his costs of the appeal. Fawcett, J.