SHAH MUHAMMAD FAKHRUDDIN Vs. RAHIMULLAH SHAH

JUDGEMENT

(1.) These two applications in revision arise out of the same facts. There were two suits before the learned Subordinate Judge of Ghazipur, the plaintiff of one of which was the defendant in the other. The parties agreed to refer the matters in dispute to arbitration and three persons were appointed arbitrators. Before the arbitrators, the parties stated that they had arrived at a compromise by which the suit instituted by the applicant before us should be decreed and the suit instituted by the opposite party Rahimullah should be dismissed. The arbitrators recommended that the Court should dispose of the two suits according to this compromise. When the matter went before the learned Subordinate Judge, Rahimulla took exception to the award on the ground that the compromise recorded by the arbitrators had been arrived at by means of lottery and the compromise was not binding on him. The learned Subordinate Judge gave effect to this objection and set aside the award. It is against this order that the two applications in revision have been filed.

(2.) It appears to us that no revision would lie under Section 115 of the Civil Procedure Code. This section was interpreted in a Full Bench case of this Court, viz : Buddhoo Lal V/s. Mewa Ram A.I.R. 1921 All 1. In that ease three learned Judges as against two held that where the matter to be revised arose out of the proceedings of a pending suit there would be no revision till the suit bad been decided. In the case before the Full Bench it appears, the question was as to whether the trial Court had jurisdiction to hear a particular suit. The trial Judge decided that he had the jurisdiction and accordingly proceeded to hear the suit. Then, an application in revision was filed to this Court. The majority of the Judges hearing the application were of opinion that the order of the trial Judge deciding that he had jurisdiction to hear the suit was not a case and no revision lay. The language used by Piggott, J. leaves no room for doubt on the point. He says: If this view is correct it follows that, whereas all cases are not suits, every suit is at least a case . From this I would go on to conclude that where the case in which the revisional jurisdiction of the High Court is invoked happens to be also a suit then this suit is also a case referred to in Section 115 of the Civil Procedure Code, which requires to be decided before the record is called for.

(3.) Following this full Bench case we are of opinion that no application in revision lies against the order passed by the learned Subordinate Judge. We may add that the applicant is not without his remedy. On the trial of the suits he may succeed and there may be no occasion for him to complain of the order passed by the learned Subordinate Judge. If the decision on the merits goes against him he can appeal on the merits of the case and also urge the ground that the trial Court ought to have accepted the compromise and the award as final between the parties.