THAKUR SINGH Vs. KANDHAI

JUDGEMENT

(1.) The circumstances which have led to this application are somewhat unusual. The plaintiff opposite party filed a suit in the Small Cause Court of Allahabad, which was transferred to the Court of the honorary Munsif. The matter was referred to arbitration on 9 November 1935. On 5 February 1934, a report was received from the arbitrator by the Court to the effect that the defendant had failed to appear on some of the dates fixed, that be had finally failed to appear on the 27 January which had been fixed for final disposal and that the arbitrator had therefore no alternative, but to recommend that the plaintiff's claim be decreed ex parte, adding that the defendant might however get the decree set aside by a proper motion if he so desired, as the recommendation made by the arbitrator was an ex parte one. No notice was issued to the defendant on the receipt of this report, and the Court ordered the matter to be put up on 15th February 1934, i.e., after ten days. In February the Court passed an order that no objection had been received and that the suit was decreed in accordance with the award. A few days later the defendant made an application to the Court to the effect that the award was an ex parte one, that the defendant had received no notice and that the decree was also ex parte. The Court apparently considered this as an objection to the award, and after several hearings disposed of it on the 31st August in the following order: The grounds on which it is prayed that the award be set aside are not sufficient. We therefore confirm the award and pass a decree in accordance with the award.

(2.) It will be observed that the decree in accordance with the award had already been passed on 15 February 1934, and that this order of the 31 August was merely a repetition of the former one. The main ground on which the present application is based is that no notice of the filing of the award was given to the defendant as required by para. 10, Schedule 2, Civil P.C.

(3.) That such a notice is necessary is clear from the provisions of para. 10 of the Schedule, and also from the decisions in several cases, among which may be quoted those of Chatarbuj Das V/s. Ganesh Ram (1898) 20 All 474 and Udit Singh v. Ram Lakhan Singh 1933 All 313. It has been argued however that there was no award and therefore no notice was necessary. The arbitrator in forwarding the report to the Court was acting it is said, under Clause (2), para. 7 of Schedule 2, in which it is provided that persons making default before the arbitrator shall be subject to the like disadvantage by order of the Court on the representation, of the arbitrator as they would incur for the like offences in suits tried before the Court. If a party fails to appear before the Court, it is open to the Court to proceed ex parte, and it is therefore argued that the Court on the recommendation of the arbitrator proceeded ex parte and pronounced a decree, which required no notice.