ASIM KRISHNA DEB Vs. SAILESH CHANDRA GHOSH

JUDGEMENT

(1.) The facts of the case out of which this rule has arisen are these: The opposite party instituted a suit for partition in the Court of the Subordinate Judge at Alipur, sometime in 1921. A preliminary decree was made in August 1921, a commissioner was appointed and a final decree was passed on 20 February 1923. On an application for a review being made this decree was set aside and1 a fresh partition was ordered. The parties then agreed to refer all the disputes in the suit to arbitration. Sir Provash Mitter and his brother Sir Benode undertook this duty. It was agreed that the arbitrators might make separate awards from time to time.

(2.) They made an award regarding the Calcutta properties. The parties as usual in these cases began to file various objections to the arbitrators award. The arbitrators then refused to have anything more to do with them and the remaining properties which also formed part of the subject of the partition suit have not been dealt with by the arbitrators. The Court held that the award being only a partial award it could pass no decree on it. The Court, therefore, set aside the award and ordered the parties to take the necessary steps. The petitioner then moved this Court and obtained this rule. His contention is that a decree can be made on a separate award and that hence, the Judge in refusing to make a decree on the separate award has refused to exercise a jurisdiction vested in him by law.

(3.) So far as the present matter is concerned it is no doubt an interlocutory order in the suit and the view I have always taken is this, that such an order cannot form subject of revision under Section 115, Civil P.C., It is not, however, necessary to discuss this question because whether or not an interlocutory order can form the subject of Section 115, Civil P.C., I am quite satisfied that the present matter, whether interlocutory or final order, cannot form the subject of an application under Section 115. The argument put forward is this that the Judge wrongly decided that he could not pass a decree on a partial award. Hence he refused to exercise a jurisdiction vested in him by law, and so the matter comes within the provision of Section 115. If this argument be accepted, as far as I can see, every error of law or fact can be converted or perverted into the subject of revision under Section 115.