Musafir Ali vs Md. Roysul Haq Chaudhury and Others

Thadani, C. J.

This is a second appeal from the judgment and decree of the learned Subordinate Judge, Cachar, dated 7th January 1916, by which he set aside the judgment and decree of the trial Court which had dismissed the plaintiff''s suit with costs.

The facts material to the appeal are these. The plaintiff and defendant 4 referred certain matters in dispute between them to the arbitration of defendants 1-3. The arbitrators gave their award on 20th October 1948, which was duly filed in Court and numbered as a suit. The plaintiff objected to the award and sought to have it set aside. Defendant 4 supported the award and contended that it was not liable to be set aside. The trial Court, however, came to the conclusion that the award was liable to be set aside, and instead of setting aside the award, decreed the plaintiff''s suit a matter only of terminological-inexactitude. The lower appellate Court reversed the judgment and decree of the trial Court, thereby refusing to set aside the award.

The question for our consideration is--whether a second appeal is competent. Section 39 (1), Arbitration Act of 1940 provides for an appeal against an order setting aside or refusing to set aside an award. There is no provision in the Arbitration Act which provides for a second appeal against an order setting aside or refusing to set aside an award. Mr. Dam for the appellant contended that the subject-matter of the award was one which could not be referred to arbitration, and that the proceedings, therefore, in the Courts below were not proceedings under the Arbitration Act but must be regarded as a suit, and a second appeal was competent under the provisions of the Code of Civil Procedure. We are unable to accept this contention. Section 32, Arbitration Act is in these terms:

Notwithstanding any law for the time being in force, no suit shall lie on any grounds whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended,. modified or in any way affected otherwise than as provided in this Act.

u/s 30, Arbitration Act, an award shall not be set aside except on one or more of the following grounds, namely : (a) that an arbitrator or umpire has misconducted himself or the proceedings; (b) that an award has been made after the issue of an order by the Court superseding the arbitration or after the arbitration proceedings have become invalid u/s 35; (c) that an award has been improperly procured or is otherwise invalid.

Clause (c) of Section 30 is wide enough to cover an award which is sought to be challenged on the ground that the subject-matter of the reference was not capable of being referred to arbitration. The trial Court in this case set aside the award on the ground of misconduct of the arbitrators. The lower appellate Court took the view that there was no misconduct, and that the subject-matter of the award was properly referred. Mr. Dam conceded that if the proceedings before the Courts below are to be regarded as proceedings under the Arbitration Act, a second appeal was incompetent. We have already observed that the present proceedings were proceedings under the Arbitration Act, and that they cannot be regarded as a suit in view of the provisions of Section 32, Arbitration Act.

Mr. Dam next contended that if a second appeal does not lie, it should be treated as an application in revision under the provisions of Section 115, Code of Civil Procedure, We do not propose to treat the appeal as an application in revision for two reasons--(1) The respondent has not appeared and it would entail an adjournment of the proceedings for a formal application to be made under the provisions of Section 115, Code of Civil Procedure, regarding which a notice must be served on the respondent; (2) the subject matter of the proceedings ''is a small sum of Rs. 50.

The result is that the appeal is dismissed with no order as to costs, as the respondent has not appeared.

Ram Labhaya, J.

I agree.