ABDUL AZIZ SHEKH Vs. CHANDU SONU KHODKE

JUDGEMENT

(1.) IN Rajmal Girdharmal V/s. Maruti Shivram (1920) I.L.R. 45 Bom. 329 S.C. 22 Bom. L.R. 1371, it was held that when a party to an award sought to file it in Court under paragraph 20 of the second Schedule of the Civil Procedure Code, and the Court refused to file it, such refusal would not operate as a bar of -res judicata if the party filed a regular suit thereafter to enforce the award. IN this case the applicant sought to file an award passed in his favour dated September 17, 1918. The application was registered as a suit. But thereafter the defendant died and his legal representatives were not brought on the record within the prescribed period. An order for abatement was then passed, The applicant then brought a suit in the First Class Subordinate Judge Court to recover the money under the award, but the plaint was returned by the Joint Subordinate Judge as being beyond his jurisdiction and was presented to the Small Cause Court. The plaintiff, however, thought he would prefer an appeal to the District Judge against the decision of the Joint Judge returning the plaint. So he got back his plaint, but he lost the appeal, and again presented the plaint to the Small Cause Court. The Judge considered that the suit was barred under Order XXII, Rule 9, considering that the decision in Rajmal Girdharmal V/s. Maruti Shivram was not applicable, and that although an order rejecting an application to file an award would not be considered as a decree, yet an order of abatement in a similar proceeding would bar a regular suit being filed to enforce the award. We cannot see any difference between the two. An order that an application to file an award abates is in the same catagory as an order refusing to file an award. So neither order can operate as res judicata. We further think that the Judge was wrong in holding that the suit was not maintainable because the plaintiff ought to have adopted a different procedure after the District Court had confirmed the order of the Subordinate Judge. He would be entitled, in any event, after his plaint was returned to him, to file it again in the same Court, subject to any bar there might be of limitation. The Judge also thought that the suit was misconceived as the plaintiff was trying to recover the amount awarded without a decree on the award, and the question whether the award was validly passed or not could not be tried in such a suit. But a suit can be filed to enforce an award without the plaintiff first obtaining an order that the award itself shall be filed. IN such a suit there does not appear any reason why the validity of the award could not be assailed. We make the rule absolute and direct that the suit should be heard on its merits by the Small Cause Court Judge. Costs to be costs in the cause.