HARIDAS DEY Vs. KAILASH CHANDRA BOSE

JUDGEMENT

(1.) This is an appeal by the plaintiff against the judgment of the learned Subordinate Judge of Dacca, dated the 23rd April 1915, modifying the decision of the Munsif of the same place. The plaintiff brought the suit to recover possession of a plot of land on the ground that the pro forma defendants who were his burgadars had been dispossessed by the defendant No. 2 and the defendants Nos. 1 and 3 to 7 all acting together. One defendant only, namely, the defendant No. 2 contested the suit, and, therefore, it seems to have been assumed that under the terms of the Civil Procedure Code the plaintiff and the defendant No. 2--were the only parties who were interested in the matter and accordingly those two parties--the plaintiff and the defendant No. 2 agreed to refer the matter to arbitration. The arbitrators had made their award. The award was presented to the Court and no objection within the time allowed by the Indian Limitation Act was preferred against the award so made. The case then came on for final disposal before the learned Munsif and the learned Munsif--whether it was noticed by the parties before or not I do not know and it does not matter--proceeded in this way: First of all, he recorded evidence as against the non-appearing defendants and then he decreed the suit in the terms following. The suit be decreed in accordance with the award of the arbitrators in so far as it relates to the plaintiff s title to the land, that the plaintiff s title to the land be declared and that he do recover possession of the disputed land as against the defendants. It is quite clear that it was a good order which all the defendants were bound to obey, namely, to deliver possession of the land to the plaintiff in accordance with the judgment of the learned Munsif. Thereupon the defendant No. 2 alone preferred an appeal to the learned Subordinate Judge. The learned Subordinate Judge dismissed the appeal of the defendant No. 2, but set aside the judgment of the learned Munsif so far as it related to the non-contesting defendants who had not joined in the appeal to the learned Subordinate Judge. Now, we have an appeal and a cross-objection.

(2.) The cross-objection was preferred by the defendant No. 2, who was one of the parties who went to arbitration. His case can be very shortly disposed of. He lodged no objection against the award made by the arbitrators and, in accordance with Section 16 of the Second Schedule to the Code of Civil Procedure, the Court passed a decree. It is not suggested that the decree so made is in excess of the award, nor it is suggested that it is not in accordance with the award. The provisions of the existing Code of Civil Procedure clearly prohibit questions as to the validity of the decree after it has been passed, except in cases where the decree is in excess of or is not in accordance with the award. That being so, whatever may be one s own views with regard to the order of reference made in the suit between the plaintiff and the defendant No. 2, it is much too late now to question the validity of the decree passed on the award. The cross-objection of the defendant No. 2 must accordingly be refused.

(3.) The appeal of the plaintiff may also be disposed of in an equally short way. The non- contesting defendants were directed by the learned Judge of the primary Court to deliver over possession of the land to the plaintiff. They preferred no appeal against that order and it was not competent to the learned Judge of the lower Appellate Court in the appeal to which the non-contesting defendants were not parties to vary the decree of the first Court in the manner he did as regards them. It is suggested that he had power under Order XLI, Rule 33, Civil Procedure Code. That obviously is not so. That section does not apply to a person who was not a party to the appeal. These non-contesting defendants were not parties to the litigation in the lower Appellate Court. Obviously, on first principles, the learned Judge in that Court could not vary the decree of the Court of first instance as regards their rights and liabilities as adjudicated on by that Court. The appeal must, therefore, be allowed to this extent that the decree of the lower Appellate Court, in so far as it concerns the defendants Nos. 1 and 3 to 7, must be set aside and the decree of the Court of first instance as regards them will be restored. The appellant will be entitled to realize his costs in this appeal from the defendants Nos. 1 and 3 to 7. The appeal as against the defendant No. 2 will be dismissed. The defendant No. 2 s costs in the appeal and the plaintiff s costs in the cross-objection will be set off one against the other and neither of these two parties will be entitled to claim anything against the other. Shamsul Huda, J.