SOUDAMINI GHOSE Vs. GOPAL CHANDRA GHOSE

JUDGEMENT

(1.) This appeal is directed against an order under Clause (1) of paragraph 21 of the second Schedule of the Civil Procedure Code of 1908, The Court below has ordered that an award made by arbitrators without the intervention of the Court be filed. A preliminary objection has been tai fin to the competence of the appeal, on the ground that as a decree has already been drawn up in accordance with the judgment pronounced on the basis of the award and as such decree is not open to appeal under Clause (2) of paragraph 21, the order must be deemed to have merged in the decree and to be no longer liable to be challenged by way of appeal. In our opinion, the preliminary objection must be overruled. It cannot be disputed that under Clause (f) of Sub-section (1) of Section 104 of the Code, an appeal lies from an order tiling or refusing to file an award in an arbitration without the intervention of the Court. Such appeal may be preferred at anytime within the period prescribed therefor by the Indian Limitation Act. The fact that a decree is drawn up on the basis of the judgment which follows the order cannot take away the right of appeal of the party aggrieved by the order. No doubt, the decree cannot be assailed by way of appeal, except on the ground that it is in excess of or not in accordance with the award. But this does not justify the inference that as soon as the decree is drawn up, the order which is its foundation becomes merged therein and loses its character as an appealable order. It has been argued, however, that this view may lead to an anomalous result, namely, that if the appeal is entertained and ultimately allowed, the order will stand cancelled, while the decree based thereon will remain unaffected, because it has never been challenged by way of appeal, as he limited ground on which it can be attacked does not exists. This position has been sought to he illustrated by a reference to the concrete facts of the present case. The order under Clause (1) of paragraph 21 was made by the Subordinate Judge on the 30th June 1911, and on that very day, he pronounced judgment according to the award. The decree on the basis of the judgment was drawn up on the 4th July 1911, but, as required by Rule 7 of Order XX of the Code, bore the date of the judgment. The present appeal against the order was lodged on the 30th September 1911. No appeal has ever been preferred against the decree, as there is no reason to hold that the decree is in excess of or not in accordance with the award. Under these circumstances, it has been argued on behalf of the respondent that if the present appeal is entertained and allowed, the decree will still remain operative, and that consequently, it would be idle to hear this appeal on the merits. This argument is manifestly fallacious. If this appeal is allowed, the decree will become infructuous; the whole foundation of the decree will disappear; and it will be competent to this Court to declare that the decree had been vacated, because the order on which it was based had been cancelled. We hold, accordingly, that this appeal is competent and this view is in record with that adopted in Sabitree v. Promoda Prosad 19 Ind. Cas. 941 : 21 C.L.J. 248 and Khetter Nath v. Ushabala Dasi 22 Ind. Cas. 391 : 18 C.W.N. 381.

(2.) To appreciate the merits of the controversy between the parties, a brief outline of the facts is essential. One Umes Chandra Ghosh, husband of the appellant and father of the respondent, died in 1909. He had made a testamentary dispositions of his properties on the 3rd June 1906, by which he appointed his widow (the appellant) and his son by a predeceased wife (the respondant) as the executors of his estate. The widow and the son jointly applied for probate of this Will, which was granted to them by the District Judge on the 7th June 1910. Before the probate had been granted, however, on the 18th May 1910 the widow and the son executed an ekrarnama by which they referred to three rbitrators the disputes which had arisen between them as to the construction of the Will, as to their right to possess and enjoy the properties covered thereby and several other matters. The ekrarnama expressly states that, should the arbitrators deem any of the terms of the Will indefinite or illegal, they would be competent to alter such term and to make a definite and reasonable provision in place thereof agreeably to the intention of the testator. On the 20th July 1910, the arbitrators made their award. On the 26th September 1910, the son pplied, under paragraph 20 of the second Schedule of the Code, for enforcement of the award. The widow resisted the application on the ground, amongst others, that the award was invalid because based on a submission which was illegal and beyond the competence of the parties. The Subordinate Judge has overruled all the objections taken by the widow, directed that the award be filed and made a decree in accordance therewith. In our opinion, the order of the Subordinate Judge cannot be supported.

(3.) The parties to the submission were executors to the Will of the testator; they had applied for probate of the Will which was shortly afterwards issued to them. They are bound by the terms of the Will and it is their duty to administer the estate in accordance therewith, subject to the control of the Probate Court. They proceeded, however, by means of a reference to arbitration, to arrange for the administration of the estate as if they wore not joint executors, and for its possession and enjoyment independently of the provisions of the Will. They expressly authorised the arbitrators to substitute for the provisions of the Will, which might seem to them indefinite or illegal, other provisions agreeably to what might be imagined to have been the intention of the testator; in other words, the executors, in their submission, authorised the arbitrators to make a new Will for the testator. The arbitrators have literally availed themselves of the authority thus conferred upon them, and a comparison of the provisions of the Will with the elaborate directions given by the arbitrators for the management and distribution of the estate will make manifest the extent to which they have departed from the provisions of the Will. The question, consequently, arises whether an award of this character, based on a submission which was clearly beyond the competence of the parties, should be enforced by the Court.