Ambica Dasia vs Nadyar Chand Pal (and on his death his sons, Akhai Coomar Pal and Others)

O''Kinealy and Trevelyan, JJ.—In this suit one Ambica Dasia, a Hindu widow, sued to recover possession of her husband''s property out of the hands of the defendants. During the progress of the case the dispute was submitted to arbitration, and an award was delivered, which was set aside by the Munsif u/s 521 of the CPC on the objection of the plaintiff. The case was then set down for trial, but before judgment was delivered, or any decision was had on the merits of the case, the defendants appealed to the District Judge, who came to the conclusion that the Munsif was not justified in setting aside the award of the arbitrators. He, therefore, decreed the appeal, and gave judgment in terms of the award. Against this decision the present appeal has been filed.

The question we have to decide in this case is, whether an appeal from the order oi the Munsif lay to the District Judge. In the case of Mothooranath Tewaree v. Brindabun Tewaree 14 W.R. 327 it was decided that an order setting aside an award was merely an interlocutory order, which was not subject to appeal, but only liable to revision by an Appellate Court when the final decree was appealed from. In a later case, namely, the case of Howard v. Wilson ILR Cal. 231 a different conclusion was arrived at.

There it was held on appeal from a similar order passed on the Original aide of this Court that the order was a judgment under the Charter from which an appeal lay direct. But it does not appear that in this case the previous decision of Sir Richard Couch was either cited or taken into consideration. Moreover, this decision has not been followed, for in the case of Sree Ram Chowdhry v. Denobundhoo Chowdhry ILR Cal. 490 another Division Bench of this Court held that no appeal lay from an order u/s 521. We are of opinion that we should follw the decision of Sir Richard Couch in Mothooranath Tewaree v. Brindabun Tewaree 14 W.R. 327 and holding that the lower Appellate Court had no jurisdiction to receive this appeal, we set aside the judgment of that Court.

To this our decision is limited. We do not decide any question whatsoever regarding the validity of the award, and whether it is binding upon the parties or not. These questions, if they are ever raised, must be raised in appeal from the final decision of the Munsif.