ASHUTOSH GHOSE Vs. SUDHANGSHU BHUSAN GHOSE

JUDGEMENT

(1.) The plaintiff who is the appellant in this appeal and the defendant who is the respondent therein are two brothers. They had an 8 annas share and their cousin had the remaining 8 annas share in a residential house, which was joint, but for convenience of possession they were in separate possession thereof from their said cousin. Besides the dwelling house, the two brothers had various joint moveable properties, some moneys invested on interest, some G. P. notes, a Life Insurance Policy, the worship of family deities, and also some joint debts. Disputes having arisen between the two brothers, two proceedings under Section 107, Criminal P. C, were started against them in the Court of the Subdivisional Magistrate of Sadar (South) in Dacca. Upon that through the intervention of mutual friends and on the advice of well-wishers of them both, the two brothers voluntarily approached Mr. Sachindra Nath Chatterji, the said Magistrate, and prevailed upon him to act as arbitrator for effecting a settlement of their differences. On 25 September 1930 the arbitrator aforesaid completed and signed his award. On 30 November 1930 the plaintiff applied to him for delivery of the original-award to him. He got it on 1 December 1930 and on the same day filed it with the Collector to have it stamped.

(2.) On 23 December 1930 it was stamped by the Collectorate and returned to the plaintiff. On 5 January 1931 the-plaintiff applied to the Court below for filing the award, and a suit being commenced on the application, was eventually dismissed. From the order thus passed, he has taken the present appeal. The defendant in the Court below challenged the award upon various grounds: invalidity of the reference, misconduct on the part of the arbitrator, incompleteness in the award, etc., etc. These gave rise to a number of issues. All these issues with the exception of one were decided against the defendant. The issue which was decided in his favour and against the plaintiff was issue 7: "Does the award decide all matters of dispute between the parties. If not,, can any decree be passed on it?" The Court below found that certain debts which were designated in the proceedings as market-debts were left undetermined by the arbitrator.

(3.) To understand the position some more facts require to be stated. On the Magistrate agreeing to arbitrate two petitions were filed before him, one by each of the parties, on 23rd December 1929. They were similarly worded, and in each it was stated that he was to act as arbitrator "for the purpose of deciding all matters in dispute between us, both brothers." On 25 December 1929 a statement:, representing the points in dispute between the parties, and consisting of eight paragraphs was filed on behalf of the plaintiff, each paragraph stating separately some item or items of joint property and the nature of the dispute relating thereto. A somewhat similar statement was on the same day filed on behalf of the defendant. The arbitrator noted against each paragraph in the plaintiff's statement how he proposed to proceed as regards each particular matter. Para. 3 of the plaintiff's statement is important. It ran in these words: 3. Both the brothers have some debts. Some of the bonds, handnotes or promissory notes are executed by both the brothers, some by Ashutosh (plaintiff) alone and some by Sudhangshu (defendant) alone. There are some howlats without any documents. When the two brothers separated in mess in June last, Babu Dhirendra Chandra Das Gupta, Pleader, Dacca, as arbitrator of both the brothers, made a division of those debts. Arbitrator will consider the question of confirming Debendra Babu's decision on the point, and he will make provisions as to how one brother will be liable to the other in case any creditor realizes any amount from one brother only,