MANGAL SEN Vs. PRAG DAS

JUDGEMENT

(1.) This is a first appeal from an order filing an award. The parties who had referred their dispute to arbitration out of Court were Mt. Sarju Dei, the widow of Jawala Prasad, her sons Mangal Sen and Ram Bharose and a stepson Prag Das. The award was made on 14 September 1926. An application to file the award was filed on behalf of Mt. Sarju Dei only on 9 March 1927. She made the other parties to the reference as parties to the proceedings. Prag Das filed a written statement alleging that Mt. Sarju Dei had filed the application in collusion with her sons and that it was possible that she might not prosecute it with due diligence. This was followed by an application made on his behalf on 2 November, 1927 in which he prayed that his name may be transferred from the array of the opposite party to that of the applicants. On this Mangal Sen and Ram Bharose took a further objection that the application of Prag Das was barred by time. In their previous written statement Mangal Sen and Ram Bharose had pleaded that one of them was a minor at the time of the reference and that the arbitrators were guilty of legal misconduct. The Court allowed the transfer of the name of Prag Das, but dismissed the application. Later on it retransferred the name of Prag Das to the array of the defendants. The matter came up to the High Court and a Bench of this Court was of opinion that Prag Das should have been given an opportunity to lead evidence. No question of limitation was pressed before the High Court and none was decided. The case was sent back to the Court below for disposal.

(2.) We are prepared to assume in favour of the appellants that it is still open to them to plead that the application of Prag Das was barred by time.

(3.) The application for the filing of the award had been filed by Mt. Sarju Dei within time. It was obviously a representative-application in the interest of all the persons concerned. Mt. Sarju Dei was not claiming any right in herself independently of the other parties to the award, her prayer being that the award itself be filed. It is therefore clear that if the award were to be filed and a decree passed in terms of it, the benefit of it would go to all the parties in whose favour it stood. The application was accordingly a representative application and must be deemed to have been filed in the interest of all concerned. The application of Prag Das was merely for the transposition of his name from one side to the other in order to prevent the dismissal of the application for default owing to collusion. The original application remained pending and we cannot consider the transfer of the name of the defendant as amounting to a fresh application on behalf of the defendant.