T WANG Vs. SONA WANGDI

JUDGEMENT

(1.) This appeal raises an interesting question of law, which, so far as we are aware, is not covered by authority. In execution of a money decree obtained by the appellant against the respondent, the respondent contended that the decree bad been fully satisfied Out of Court and that the appellant practising fraud on the respondent did not certify payment in Court. The appellant contended that the uncertified payment could not be enquired into under Order 21, Rule 2, C.P.C. but the learned Subordinate Judge in the execution Court decided to investigate the allegation of fraud. After be had examined several witnesses, the parties filed an application referring the dispute about payment to two arbitrators and an umpire. The case was thereupon referred to the arbitrators who by their award found a much lesser amount due to the appellant than ho was claiming in execution. Various objections to the legality of the award were raised by the appellant which were overruled by the Subordinate Judge. The concluding portion of the learned Subordinate Judge's judgment is tin these words :-"The application of the decree-holder to set aside the award is therefore rejected, the suit is consequently decreed in terms of the award with proportionate costs." The meaning of the last clause is not sufficiently clear but it appears that the learned Subordinate Judge was of opinion that a proceeding under Section 47, C.P.C. followed as it is by a judgment, is a suit which was decided in accordance with the award. Against this decision the appellant decree-holder appealed to the District Judge of Darjeeling who held that no appeal lay to him under Section 16, Schedule 2, C.P.C.

(2.) The decree-holder preferred this second appeal on the ground, among others, that the learned District Judge is wrong in holding that no appeal lay to him. A preliminary objection is raised to the competency of this appeal on the ground that as no appeal lay to the Court of appeal below no second appeal lies to this Court. The preliminary objection really begs the question in this case which is the determination of the nature of the proceedings in the execution Court.

(3.) It is contended by the appellant that the reference to arbitration was invalid in law inasmuch as there was no dispute between the parties within Section 1, Schedule 2, C.P.C. because the Court could not take notice of uncertified payments alleged by the judgment- debtor. There is no force in this {argument. Whether or not the Court can legally enquire into it, any question on which the parties join issues is a dispute within the meaning of that section.