SHEOCHARAN MAHTON Vs. SANICHAR MAHTON

JUDGEMENT

(1.) This is an appeal by the defendants against the decision of the Sixth Additional Subordinate Judge of Patna. The plaintiffs had instituted a suit for declaration of title and recovery of possession. After filing of the written statement by the defendants all the parties agreed that the dispute should, be referred to arbitration. Accordingly eleven arbitrators were appointed as agreed to by the parties in the suit. Alter some time the arbitrators submitted their award to the Court, but it appears that only eight of them had signed it According to the award the plaintiffs suit would stand dismissed. Plaintiffs objected to the award on various grounds, the principal ground being that all the eleven arbitrators aid not attend the arbitration proceedings, and, therefore, the award was invalid. The Munsif, before whom the objections were raised, decided that the award was not invalid and pronounced judgment in terms of the award. Against this decision of the Munsif the plaintiff's appealed, and the appeal was heard by the Sixth Additional Suberdinate Judge, who came to the conclusion that the award was invalid, having regard to the fact that the proceedings in arbitration were conducted in the absence of all the eleven arbitrators taking part in the same. He found as a fact that the case before him was not one where all the arbitrators bad attended the proceedings, but that only some of them attended the proceedings and a majority of them had signed the award.

(2.) Mr. Rahman on behalf of the respondents took a preliminary objection that no second appeal lay m view of the provisions of Section 39, Arbitration Act of 1940. Mr. De, however, contended that the lower appellate Court had no jurisdiction to entertain the appeal at all, and, in view of certain decisions or this Court, a second appeal lay. He urged, however, that if no second appeal lay, the appeal may be treated as an application in revision. He further objected, that it was illegal for the lower appellate Court to have found that all the arbitrators had not attended the arbitration proceedings as there was no evidence of it except the affidavits He also cited certain authorities of this Court to show that it was not necessary for all the arbitrators to have signed the award when it was clear that a majority decision was binding on the parties. In this case, out of eleven arbitrators eight had signed the award, and their award was against the plaintiffs

(3.) In meeting the preliminary objection raised by Mr. Rahman Mr. De argued that the decision of the Munsif refusing to set aside the award and pronouncing a judgment in accordance with it was a case where the order refusing to set aside the order had merged into decree, and, accordingly, no appeal lay. He referred to Section 17 of the Act which provides: Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set as de the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award.