SHAVAKSHA DINSHA DAVAR Vs. TYAB HAJI AYUB

JUDGEMENT

(1.) This is a motion taken out by the plaintiff for an order that the adjustment of the suit arrived at between the plaintiff and the defendant, as stated in the plaintiff s affidavait, should be recorded and that a decree in accordance therewith should be passed.

(2.) The suit was filed on the 11th of June 1915, the plaintiff praying that the defendant might be ordered and decreed to pay to the plaintiff the sum of Rs. 5,353-9-6 as the price of goods sold. On the 31st August 1915, the parties, without the intervention of the Court, agreed to refer the matters in dispute between them concerning the contract referred to in the plaint to the arbitration of Motilal Dayaram and Ramji Meghji. The arbitrators made their award on the 28th of October 1915. The award was filed on the 10th of December. In my opinion, a wrong procedure has been adopted. Order XXIII, Rule 3, of the Civil Procedure Code of 1908 under which the application is made only refers to the adjustments of suits wholly or in part by any lawful agreement or compromise. No application can be made to obtain a decree on an award except as provided for in Section 89 of the Code. That is entirely a new Section. It runs as follows: Save in so far as is otherwise provided by the Indian Arbitration Act, 1899, or by any other law for the time being in force, all references to arbitration whether by an order in a suit or otherwise and all proceedings thereunder shall be governed by the provisions contained in the Second Schedule.

(3.) If it had been intended that a party might apply for a decree on an award under Order XXIII, Rule 3, that Rule would have been mentioned in Section 89 along with the provisions of the Second Schedule.