MAHOMED VALLI ASMAL Vs. VALLI ASMAL

JUDGEMENT

(1.) This appeal under the Letters Patent arises under the following circumstances:--

(2.) The appellant who is the plaintiff filed a suit against the defendants in the Court of the First Class Subordinate Judge at Broach, and that suit was determined by the judgment given in terms of an award between the parties. An appeal was filed against the decree made on this judgment, and that appeal was summarily dismissed by Macleod C.J. on the ground that no appeal lay. From that summary dismissal this appeal under the Letters Patent was admitted by us and being conscious of the fact that the decree appealed against was not in excess of the award we directed that the appeal should be admitted as an appeal against an order either under Section 104(1)(f) of the Civil P. C. or under Order XLIII Rule 1 (m) of the same Code. That order was evidently made under the impression that the award had been made without the intervention of the Court. It now appears that the order was made on a reference through the Court under Schedule II to the Civil P. C.. It follows therefore that the award cannot be treated either as a compromise under Rule 3 of Order XXIII, or an order appealable under Section 104(1)(f) of the Civil Procedure Code.

(3.) On what ground then is the appeal maintainable? Mr. Koyajee argues that an appeal lies because the award in terms of which the judgment was given was not in fact an award. He contends that there was no reference as one of the parties did not sign the submission paper himself, his signature being affixed on his behalf by his pleader. In other words Mr. Koyajee's contention is that an appeal will lie against the decree made, in terms of the award, if he can show that that award was an invalid award or an award made without jurisdiction. This was the ground on which appeals were admitted under the old Code in the cases of Indur Subbarami Reddy V/s. Kandadai Rejamannar Ayyangar (1902) I.L.R. 26 Mad. 47 and Shib Lal V/s. Chaturbhuj. (1909) I.L.R. 31 All, 450. But the effect of the introduction of the words "or being otherwise invalid" in paragraph 15 of the Schedule II of Civil Procedure Code, is that any objection to the award on the ground that it is not an award or on the ground of its invalidity should be made at the time when the award is filed. If that objection is not made then, or if that objection is then made and is disallowed., it is not open to the party objecting, to reagitato the matter by way of appeal against the decree. The object, of that change in paragraph 15 of the arbitration Schedule was, as pointed out by Mulla J. in his notes on the subject, to give full effect to the principle of finality MS laid down by the Privy Council in Ghulam Jilani V/s. Muhammad. Hussain. (1901) I.A. 51, 4 Bom. L.R. 161. The appeal was therefore rightly dismissed as not competent.