RAM DEVI Vs. GANESHI LAL

JUDGEMENT

(1.) This is an appeal from an order of the Second Additional Subordinate Judge of Aligarh, ordering an award by an arbitrator without the intervention of a Court to be filed, under para. 21 of the 2nd Schedule of the Civil Procedure Code. Ganeshi Lal, one of the parties to the reference to arbitration, applied for the filing of the award, while Mt. Ram Devi, widow of Sheo Prasad, for herself and her minor son, a second Mt. Ram Devi, wife of Bhola Nath, Jai Deo Prasad for himself and his minor nephews and Ganga Prasad, showed cause why the award should not be filed. The objectors other than Mt. Ram Devi, wife of Bhola Nath, have appealed and the applicant Ganeshi Lal has contested the appeal.

(2.) The property in dispute, which is revenue paying and ancestral property, belongs to Bijai Indar Singh. He was adjudged an insolvent and a receiver was appointed of his property. The contesting parties to this appeal are all his secured creditors. He had unsecured creditors also, who are represented by the receiver in insolvency. The insolvent was out of possession and in the opinion of the receiver some of the properties were fictitiously sold. Litigation therefore arose between the receiver and certain persons in possession of the insolvent's property. Finally the secured creditors, the persons in possession of the property and the receiver entered into an agreement, on 28 February 1923, to refer the matter relating to the payment of the secured and unsecured debts and to their amount to arbitration. The first arbitrator died in the following September, and on 4th November 1923, the parties, with the exception of two (who are thereforenot bound by the award), appointed B. Manni Lal, pleader, as new arbitrator.The award under discussion was made by him on 4 June 1924. The parties had entered into certain agreements both before the first arbitrator and before the second arbitrator; they will be examined when the objections of the appellants are considered.

(3.) The contention of the appellants is that the award is illegal on the face of it and therefore the Court should refuse to file it. The alleged reasons for illegality are threefold. (1) That it gives an illegal direction to the parties for the settlement of pending suits and existing decrees. (2) That the direction given to the receiver by the arbitrator to bring the property to sale and realize the sale proceeds through Court is illegal having regard to the provisions of Section 60 of the Provincial Insolvency Act. (3) That the arbitrator has disregarded the agreement between the parties of giving priority to three claims, one under the decree No. 55 of 1913 in favour of the widow of Sheo Prasad, another under a mortgage of 1st March 1911, resulting in a decree of 24 September 1923, in favour of the widow of Sheo Prasad and the wife of Bhola Nath, and a third under the mortgage of 1st February 1912, resulting in a decree of 7 April 1924, in favour of Sheo Prasad's widow, Jai Deo Prasad and Ganga Prasad.