ABANI BHUSAN CHAKRAVARTY Vs. HEM CHANDRA CHAKRAVARTY

JUDGEMENT

(1.) This appeal is directed against the decision in appeal of the Additional District Judge, Barisal. In the trial Court the plaintiffs asked for a declaration of a right of way over a certain path and for an order directing the removal therefrom of certain obstructions caused by the defendants. Their suit was decreed with costs. On appeal by the defendants, and on the joint petition of the appellants and the respondents, the entire subject-matter of the dispute between them was referred to the arbitration of 3 local pleaders on 19-12-1940. The arbitrators filed their award on 21-3-1941, and after hearing objections to the award, the learned Additional District Judge dismissed the appeal in terms of the award, which modified to some extent the decree made by the trial Court.

(2.) The plaintiffs have now appealed to this Court and the only point which has been urged by Mr. Guha for the appellants is that the lower appellate Court had no authority to refer the dispute to arbitration, and consequently that the decree made by him in terms of the award is without jurisdiction and should be set aside. In support of this contention, Mr. Guha has referred to the earlier decisions in regard to references to arbitration at the appellate stage, and has maintained that those decisions which accepted the view that such references could be made by the appellate Court were based on the provisions for arbitration contained either in the Civil P. C. or in the Schedules to the Codes applicable at the time. Since the present law of arbitration is contained in the new Act (10 [X] of 1940) and contains no provision for any reference to arbitration by an appellate Court, the previous decisions are, he contends, no longer applicable. For the respondents on the other hand, it has been argued that the definition of "Court" in Clause (c), Section 2, and the provisions of Secs.21 and 41, Arbitration Act, are, when read together, sufficient authority for holding that an appellate Court has ample jurisdiction in an appeal, which it is said, is only a continuation of a suit, to refer to arbitration the matters in dispute between the parties.

(3.) The question is not free from difficulty and requires careful consideration. The earliest decision on a question of this nature was by a Full Bench of the High Court in Juggeshur Dey V/s. Kritartha Moyee Dossee ( 74) 12 Beng. L.R. 266 and was that an appellate Court has no power under the Civil P. C. to refer a case to arbitration even on consent of the parties. That decision was based on Section 312 of the Code of 1859 which was in the following terms: If the parties to a suit are desirous that the matters in difference between them shall be referred to the final decision of one or more arbitrator or arbitrators they may apply to the Court at any time before final judgment for an order of reference. In dealing with the matter Couch C. J. after referring to the different sections relating to references to arbitration observed: I have said already that these sections apply to the Court in which the suit is brought, the primary or original Court. They can be made applicable to a Court of appeal by Section 37 of Act 23 [XXIII] of 1861 and I think that section does not make them applicable to it. It provides that unless when otherwise provided, the appellate Court shall have the same powers in cases of appeal which are vested in Courts of original jurisdiction in respect of original suits. In his opinion the word "power" did not include a reference to arbitration, and consequently the matter was decided as indicated above.