GOPAL DAS Vs. BAIJ NATH

JUDGEMENT

(1.) This is a civil revision from an order disallowing certain objections to an award and directing that a decree be prepared in terms of the award.

(2.) A preliminary objection is taken on behalf of the respondents that no matter whether the decision of the Court below was right or wrong as to the objections raised before it, the order is not open to revision by this Court. Where objections are raised as to the proceedings before an arbitrator, and they are the subject of a decision by the trial Court, it cannot be suggested that there has been any irregularity committed by the Court in the exercise of its jurisdiction. Such objections, therefore cannot be properly raised again in revision. But where the applicant challenges the proceedings of the Court itself and attacks the reference made by the Court to the arbitrator it is not merely a question of a wrong decision by the Court, but may be one of irregularity or illegality committed by it in the exercise of its jurisdiction. The learned Counsel has relied on the case of Ajudhia Prasad V/s. Badar-ul-Hasan AIR 1917 All 183, where a learned Judge of this Court did observe that objections as to the validity of a reference ought to be raised under para. 15 of Sch. 2 of the Code. But in the case of Kanhya Lal V/s. Jagannath Prasad Hanuman Prasad AIR 1921 All 16, decided by a Banch of which the same learned Judge was a member, it was remarked that objection as to the validity of a reference to arbitration was not an objection within the meaning of para. 15 and had no finality attached to it. With this last observation we agree. The objection is not as to the validity of the award only, but as to the illegality of the reference to the arbitration. This reference having been made by an order of the Court it is open to revision after the case has terminated. It would not have been possible for the applicant to come up in revision from an interlocutory order. We accordingly overrule this preliminary objection.

(3.) The facts of this case are that a suit was instituted by the plaintiffs against a firm named Gobind Prasad Makund Ram which has two partners, Gopal Das and Sheo Prasad, father and son. In the plaint the plaintiffs expressly asked that notices should be served on the two partners named individually. The notices were ordered to be issued to them separately. Only Sheo Prasad filed a written statement and engaged a vakil, and in the vakalatnama he purported to engage the vakil as a partner of the firm. Gopal Das did not put in any appearance in the Court of the Subordinate Judge. Before the evidence commenced one of the plaintiffs and the vakil for all the plaintiffs as well as Sheo Prasad signed an application referring the dispute between the parties to a named arbitrator. In this application Gopal Das did not join.