THAKUR UMED SINGH Vs. SOBHAG MAL DHADHA

JUDGEMENT

(1.) IN this appeal the question is whether the officiating Chief Commissioner of Ajmer-Merwara has properly set aside the award in certain arbitration proceedings. The respondents had brought a suit to recover from the appellants Rs. 88,320 alleged to be due under a mortgage. The appellant first on the record is the father of the second appellant, who was at the time of the proceedings a minor. The trial judge appointed one Bhur Singh guardian ad litem of this minor appellant. Before the trial came on all the parties entered into an agreement to refer the questions in dispute to two arbitrators and, in the event of these differing, to an umpire. The agreement was signed by the appellants and respondents each with his own hand, excepting in the case of the minor appellant, on whose behalf it was signed by the guardian ad litem. An application to the Court for an order of reference was filed. The parties appeared before the trial judge and produced the agreement. The guardian ad litem was present in Court and was a party to the application. The trial judge thereupon made an order of reference. The arbitrators differed, and the parties then concurred in an application to refer the dispute to the umpire, and an order was made accordingly. The umpire made an award allowing the respondents' claim to the extent of Rs. 17,510 only. This award was filed in Court. The respondents, being dissatisfied with it applied to the trial judge under the provisions of Section 15 of the Second Schedule of the Code of Civil Procedure, 1908, to set aside the award. The trial judge refused the application. He held that all the parties to the suit, including the guardian ad litem, had been consenting parties to the application, and further that there was no ground for the objections made on the merits to the award. The order was made under Section 16 of the Second Schedule to the Code already referred to. This section provides that:

(2.) THE respondents then presented an application to the Chief Commissioner under Section 115 of the Code of Civil Procedure, 1908. This section provides that " The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court, and in which no appeal lies thereto, and if such subordinate Court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order as it thinks fit."

(3.) THE respondents then applied to the Court of the Chief Commissioner for a review of this order, relying on Section 114 of the Code, which, subject to such conditions and limitations as may be prescribed, allows a person aggrieved to apply for a review of any decree or order from which no appeal is allowed by the Code, and relying also on Order XLVII., Rule 1, of the First Schedule to this Code, which provides that he may apply for such review on " the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge and could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason."