V.E.A. Annamalai Chettiar and Another vs V.E.A. Rm. Annamalai Chettiar and Others

Curgenven, J.—The parties are Nattukottai Chetties and originally formed a joint Hindu family. The plaintiffs sued for partition and division

of the assets shown in Schedules A to D of the plaint. Issues were framed and a reference was then made to a single arbitrator, who was entrusted

with the duty of dividing the property. The arbitrator submitted his award on 3rd January, 1930. On the 7th the Court allowed until the 17th for

objections and then further until the 24th. On that date it was stated that the plaintiffs did not wish to file any objections while further time until the

31st was allowed to the 2nd defendant. On the 31st further time was applied for on his behalf, but the Court passed a decree in terms of the

award. The petitioners before me are the 2nd defendant and his son, the 3rd defendant. They object that the award failed to dispose of certain

matters referred to the arbitrator. Schedule A relates to sites and buildings and these it is said had been left undivided. Item (1) of Schedule B

comprises certain lands, and the arbitrator did not himself divide these but nominated two persons whom he instructed to divide these lands into

two portions and send the lists to the Court, which was to assign one share to the plaintiffs and one to the defendants. In point of fact this was not

carried out. Item (2) of Schedule B consisted of a building which was to be divided into two halves, eastern and western, and assigned by lot, the

recipient of the eastern half to pay Rs. 250 to the recipient of the western half. In these respects the partition was left incomplete. Nevertheless a

decree was passed in terms of the award. I am asked to hold that the learned Subordinate Judge was wrong in passing a decree, having regard to

the condition in which the arbitrator left the matter, and that it was incumbent upon him to remit the award to the arbitrator as containing certain

matters left undetermined.

The question arises in what circumstances, if any, can this Court interfere in revision with a decree based upon an award. No authority is really

needed for the view that the decree of the Court must disclose some such excess or defect of jurisdiction, or irregularity in the exercise of its

jurisdiction, as will satisfy the terms of Section 115, Civil Procedure Code. It is only necessary to have recourse to case-law in so far as it applies

this section to the special case of decrees passed upon awards. In Ghulam Khan v. Muhammad Hassan (1901) L.R. 29 IndAp 51 : ILR 29 Cal.

167 ; 12 M.L.J. 77 (P.C.) the primary question which arose was whether an appeal lay from the decree recording an award and it was answered

by the Judicial Committee in the negative. The High Court, in coming to the same conclusion, had allowed an application for revision, but their

Lordships were inclined to agree with the view of Clark, J., in Jhangi Ram v. Mst. Budho Bai 84 P.R. 1901 ""that in the case of an award revision

would be more objectionable than an appeal,"" because if an application in revision were admissible the finality of any award would be open to

question. They point out that the award had been made and, whatever its correctness, having been duly made and not having been corrected or

modified, and the application to set it aside having been refused, the Subordinate Judge had no option but to pronounce a decree in accordance

with it. ""The Subordinate Judge does not appear to have exercised a jurisdiction not vested in him by law or to have failed to exercise the

jurisdiction so vested or to have acted in the exercise of his jurisdiction illegally or with material irregularity. He appears to have followed strictly the

course prescribed by the Code."" This Court was guided by the principles thus laid down in Batcha Sahib v. Abdul Gunny I.L.R.(1913) 38 mad.

256 : M.L.J. 507 remarking ""if it were quite clear that the learned Judge has exercised discretion wrongly in this case, we might be prepared to

take the strong step of interfering on revision, but the general policy of the legislature is clear that in these matters the judgment in accordance with

an award should be final."" I have not been shown any case in which interference took place where the objection regarding jurisdiction was not

clearly established. (1891) ILR 13 300 (Privy Council) was a case under the old Code and the Judicial Committee held that the award, having

been delivered four days out of time, was invalid and therefore without jurisdiction. It may be observed that Section 521 of the Code of 1882,

which contained the words ""and no award shall be valid unless made within the period allowed by the Court,"" has not been reproduced verbatim in

para. 15 of Schedule II of the present Code, with the result that this decision of the Privy Council is probably no longer good law. See Shib Kristo

Daw & Co. v. Satish Chandra Dutt I.L.R.(1912) 39 Cal. 822. However that may be, the Privy Council case clearly proceeded upon the footing

of jurisdiction. The same may be said of Mamidi Appayya v. Yedem Venkataswami (1918) 8 L.W. 171 where Spencer, J., held that an award

signed by two out of three arbitrators was invalid. In Ramaswami Chettiar v. Venkatarama Aiyar (1924) 49 M.L.J. 523 Wallace and Madhavan

Nair, JJ., before interfering with the decree embodying an award, very carefully considered the question of jurisdiction, arguing that if the

arbitrator''s award was beyond their jurisdiction then obviously the decree which embodied it also was without jurisdiction. I think too that the

learned Judges who decided Sukhamal Bansidhar v. Babu Lal Kedia & Co. I.L.R.(1920) 42 All. 525 had this matter in view, although the

circumstances were peculiar and neither party seems to have been interested to object to the revision of the decree.

Now in the present case I am unable to see that any question of jurisdiction is involved. It cannot be said that the arbitrator exceeded his

powers, except perhaps in so far as his award delegated to others the ascertainment and division of the lands comprising item (1) of Schedule B;

and since this was not carried out there was in fact no exercise of powers by persons not authorised by the reference to arbitration. What

happened was that the arbitrator left undone certain work which he should have completed. If the petitioners desired to take exception to the

award on the score of its incompleteness, they had an opportunity to do so before the decree was passed. There is not even a suggestion made

here that they were prevented by any sufficient cause from so doing. In a similar case, Ram Bhajan Panday v. Udit Panday (1913) 19 I.C. 405 it

was held to be the duty of an objector to get the award remitted under para. 14 of Schedule II. I do not accept the position that in the absence of

any objection, the Court was bound to scrutinise the terms of the award and satisfy itself, before passing its decree, that it disposed of all the

matters referred to arbitration; and if it did not so dispose of them, was bound suo motu to remit the award under para. 14. This is what the

petitioners ask me to hold, and, further, that the Court had no jurisdiction to pass the decree in terms of the award because it turns out that the

award did not completely divide the property. They must take the award with all its defects now that the opportunity afforded to them of objecting

to it has gone by. Their learned advocate complains of the difficulties created by the decree in its present form, and it may well be that it does

create difficulties. But the mere circumstance that the petitioners may have put themselves into an awkward situation will not give this Court

jurisdiction and power to extricate them which it does not otherwise possess. What they are virtually asking for is a further opportunity to object to

the award after letting slip the opportunity provided for them in the trial Court.

The Civil Revision Petition is dismissed with costs.