NIRMALA SUNDARI DEBI Vs. GOLAP BASHINI DEBI

JUDGEMENT

(1.) This is an appeal against an order of remand made by the District Judge of Dacca on 24th March 1932. The learned District Judge evidently purported to act under the provisions of Order 41, Rule 23, Civil P.C. The point in this appeal raises a question as to whether the remand was justified by the provisions of the said order and the said rule. It appears that the plaintiff who is the appellant before us instituted the present suit for setting aside a previous award and decree on various grounds. Her case is that the defendant brought a suit based on a right of easement against her in the Munsif's Court at Dacca and that after several adjournments in that suit the plaintiff's husband, without her consent and knowledge, referred the matters in dispute in that suit in addition to other matters which were outside the suit to arbitration; that the arbitrators submitted an award and a decree followed on the award; that the plaintiff knew nothing of these proceedings and that she came to know about the award later and commenced the present suit in which this appeal arises. Her contention is based on various grounds. She submitted in the first instance that the reference to arbitration was without her consent and knowledge and authority, that she took no part in the arbitration proceedings, that the award was vitiated by fraud and misconduct, and further that the award and the decree following on it were without jurisdiction, fraudulent, null and void and liable to be set aside.

(2.) These facts were challenged by the defendant in the suit and several issues were framed of which it is necessary to refer to issue 5 which challenged the validity of the previous award and decree on the ground of want of jurisdiction and raised the contention that the award and decree were nullities. The Munsif took up this issue first and he was of opinion that the award was without jurisdiction. He accordingly decreed the plaintiff's suit. He held that the decree in a previous Title Suit No. 1087 of 1929 passed by the sixth Court of the Munsif was null and void and was without jurisdiction and ought to be set aside. With regard to the prayer for permanent injunction the Munsif was of opinion that the question of the permanent injunction against the execution of the decree did not arise as the decree was set aside by him.

(3.) Against this decision an appeal was taken to the Court of the District Judge of Dacca,. The learned District Judge was of opinion on this issue?issue 5? that the award was not a nullity and he sent back the case to the Munsif's Court for trial of the other issues in the case. Against this decision the present appeal has been preferred and it has been contended by Mr. Brojolal Sastri who appears for the appellant, that the order of remand is bad seeing that the provisions of Order 41, Rule 23, do not apply to the present case, as the decision of the first Court was not on a preliminary point within the meaning of that rule but was a decision on the merits of the case. A question arises as to whether this contention is right or not. It is to be noticed that the decision on issue 5 was really a decision affecting the merits of the case. The plaintiff challenged the previous decree and award on various grounds and various allegations of fact and those facts were challenged by the defendant in the course of the suit and upon which several issues were joined.