SADHU SINGH Vs. RAMDEO SINGH

JUDGEMENT

(1.) This appeal arises out of a partition suit in which a decree has been passed by the learned Subordinate Judge on the basis of an award. It appears that there are four contesting parties in the partition suit. The plaintiff is admittedly entitled to a one-sixth share in the properties under partition and defendants 1 and 2 also have a one-sixth share each. Defendants 3, 4, 8 and 9 have, on the other hand, an eight annas share. In May 1940 there was a reference to arbitration by the Court below upon the application of all the interested parties to three persons, namely, Hardwar Singh, Mukhram Singh and Ganpat Singh. The award was filed on 1st August 1940 after several adjournments had been granted by the Court and on the same day one of the arbitrators, Ganpat Singh, filed an objection to the award stating among other things that there had been no formal sittings of the punches and that he had not been allowed to take any part in the arbitration proceedings.

(2.) Thereupon the learned Subordinate Judge gave an opportunity to the parties for filing objections, if any, against the award. On 10 August 1940 defendant 3, brother of defendant 4 and father of defendants 8 and 9, filed an objection attacking the award on various grounds. The learned Subordinate Judge upon hearing such evidence as was adduced by the parties decided on 27 September 1940 that the objections had not been made good and confirmed the award. The present appeal has been filed as a first appeal against the decree passed by the Subordinate Judge on 27 September 1940.

(3.) Under Schedule 2, Para. 16, Civil P.C., it was provided that after an application for setting aside an award has been refused and judgment pronounced according to the award no appeal shall lie from the decree which shall follow except in so far as the decree is in excess of or not in accordance with the award. As in this case it is not suggested that the decree is either in excess of or not in accordance with the award, it is contended that though no appeal would lie under the provisions contained in Schedule 2 of the old Civil P.C., yet this case would be governed by Section 39, Arbitration Act, which now replaces the provisions which formerly found a place in Schedule 2, Civil P.C. Section 39 does provide that an appeal shall lie from an order setting aside or refusing to set aside an award. But Section 48 of the Act provides in clear terms that: The provision of this Act shall not apply to any reference pending at the commencement of this Act to-which the law in force immediately before the commencement of this Act shall, notwithstanding any repeal effected by this Act, continue to apply.