LACHMAN DAS Vs. MUTSADDI LAL

JUDGEMENT

(1.) This is an application in revision which arises under the following circumstances. The applicant was the plaintiff in a suit in which he claimed specific performance of a contract to execute a lease of certain property ;on certain terms, or in the alternative the ejectment of the defendants from the property in question and damages. The matter was referred to arbitration and the arbitrator delivered an award. The first relief claimed by the plaintiff was in very clear terms allowed by the arbitrator, that is to say, he was declared to be entitled to obtain from the defendants the counterpart of a lease, on certain terms which were sufficiently indicated. He was awarded Rs. 270 as rent for three years prior to the institution of the suit, with a further direction that rent should continue to be payable at the same rate from the institution of the suit until the defendants should execute a kabuliyat, or counter part of a lease, in the prescribed terms. Then the arbitrator went on to deal, in the alternative, with the question of refusal or neglect on .the part of the defendants to execute the requisite document. He laid it down in this alternative that they, that is to say, the defendants will have the option to vacate the land after paying all rents due at the rate of Rs. 90 a year up to the date of the eviction, such option to be exercised within two weeks after confirmation of this award." The Court accepted the award and passed judgment accordingly; but a decree was drawn up in the vernacular which was not a literal translation of the alternative provision which has been quoted above from the award. According to the decree as drafted, the plaintiff was in express terms authorised to eject the defendants from the land in suit, besides recovering rent at the prescribed rata up to the date of ejectment. This decree is dated August the 7th, 1915. The defendants allowed two weeks to pass without executing any lease and the plaintiff thereupon took out execution of the decree according to its terms and obtained possession by ejectment of the defendants. The latter thereupon applied for amendment of the decree but on September the 25tht 1915, the presiding officer of the Court, Mr. Grant, being the same officer who had passed judgment in accordance with the award and had signed the decree in question, passed an order rejecting the application for its amendment. On October the 4th, 1915, the defendants applied for review of this order, and this application was entertained by Mr. Grant and notice ordered to issue to the opposite party. The matter came up for decision on November the 4th, 1915, by which time Mr. Grant had been transferred and his place had been taken by Mr. Neave. This officer came to the conclusion that the decree as passed was not in accordance with the award and that it was absolutely necessary for the Court to amend it. He himself, however, proceeded to draw up a decree which was not an accurate translation of the critical passage in the award to which reference has been made. He did not content himself with removing from the decree the words which in express terms empowered the plaintiff to obtain possession by ejectment of the defendants; but he proceeded to insert a provision to the effect that the relinquishment of the land in suit Was to be a matter entirely at the option of the defendants, and that in no event should the plaintiff be regarded as empowered to obtain the ejectment of the defendants in execution of the decree. Against this order an appeal was filed in the Court of the District Judge of Saharanpur. The District Judge has dismissed the appeal on the ground that it could not be supported upon any of the pleas referred to in Order XLVII, Rule 7, of the Code of Civil Procedure. The application now before me is against this order of the District Judge. The contention is that an appeal lay against Mr. Neave s order granting the application for review, under the provisions of Order XLIII, Rule 1 (w) of the Code of Civil Procedure, that this right could not be qualified by anything contained in the provisions of Order XLVII, Rule 7, and that consequently the District Judge has refused to exercise a jurisdiction vested in him by law in not entertaining the appeal before him on its merits. On the question thus stated, I am clearly of opinion that the District Judge was right. The provisions of Order XLVII, Rule 7, and of Order XLIII, Rule 1 (w), of the Code of Civil Procedure appear to overlap and it is necessary to put upon them a construction which reconciles them. In my opinion Order XLIII, Rule 1 (w), is merely inserted in order that the Rule in question may contain a complete list of those orders from which an appeal lies. It must be read subject to the provisions of Order XLVII, Rule 7, by which the right of appeal from an order granting an application for review is limited and defined. This has been held in Sundar Lal v. Upendra Nath Seal 35 Ind. Case. 15 : 1 P. L. J. 193. and I find myself in entire agreement with the view of the learned Judge who decided that case.

(2.) I think the plaintiff has been badly advised. In the Trial Court both Mr. Grant and Mr. Neave had gone beyond the powers of the Court in passing a decree which was not in precise accordance with the terms of the award. The award had been made through the intervention of the Court; and if there was anything ambiguous about the alternative relief referred to in the closing portion of the award, that was a matter which the Court ought to have noticed at the time and referred back to the arbitrator for consideration. Once the award had been accepted, it was incumbent on the Court to accept it as it stood* As soon as the decree-holder took out execution, a difficulty would, no doubt, have arisen as to the proper interpretation of the words in the award which I have already quoted; but this difficulty was inevitable, once the award had been accepted without amendment. Both the presiding officers of the Court of first instance seem to me to have gone beyond their powers in different directions, by seeking to clear up an ambiguity in the terms of the award.

(3.) This being my view of the case, it has been suggested to me in argument that I might take up the matter even now as an application in revision, not against the order of the District Judge dismissing the appeal filed in his Court, but against Mr. Neave s order of November 4th, 1915. I am not anxious to add to the irregularities which have already been committed in the case. If the plaintiff desired to invoke the revisional jurisdiction of this Court in respect of Mr. Neave s order, he should have done so in express terms; no doubt he has refrained from doing so because of the difficulty in which he had landed himself by appealing against hat order. Moreover, I am bound to say that, if the question had come before me on the execution side, so that the only point I had to decide was the legal effect to be given to the words of the award, assuming those words to have been in be died in a decree of Court, I should have agreed in substance with the view taken by Mr. Neave. The intention of the arbitrator may have been otherwise, and that is why I think it unfortunate that the possible ambiguity was not brought to the notice of the Court at the proper time, while the opportunity to refer the matter back to the arbitrator for consideration was still open; but on the words as they stand, I do not think that a power of ejectment is conferred upon the plaintiff. This does not mean that the decree leaves the plaintiff without his proper remedy. The provisions of Order XXI, Rule 34, of the Code of Civil Procedure seem to have been overlooked by the plaintiff and by his legal advisers. His proper course was to take out execution of the first part of the decree under the provisions of the Rule above mentioned. In this manner he can obtain execution of a document in the terms prescribed by the award, and the defendants, whether they like it or not, will be com-pellet! to choose between executing such a document and abiding by its terms, or voluntarily relinquishing the land, in suit. The decree-holder will be entitled under the terms of the decree to rent at the prescribed rate of Rs. 90 per annum so long as the defendants continue in possession.