TRAILOKHYA NATH BANERJEE Vs. SUKUMAR BOSE

JUDGEMENT

(1.) The facts giving rise to this appeal are as follows : There was a dispute regarding land between the appellant and the respondent and two others. The dispute was referred by the parties to the arbitration of three gentlemen who are pleaders of Jessore. They made an award. The appellant applied under Para. 20 of Schedule 2, Civil P. C., to the Court of a Munsif at Narail in the district of Jessore for an order that the award be filed. The respondent alone objected. His objections broadly were (1) that there was no valid reference to arbitration, and (2) that the award was liable to be set aside on the ground of misconduct on the part of the arbitrators. The learned Munsif held that the reference was valid and that there was no misconduct. He then passed the following order: Ordered that the suit be decreed in terms of the award with costs on contest against defendant 1 and ex parte against the rest. The award do form part of the decree.

(2.) Defendant 1, it may be noted, is the respondent. Against this decision an appeal was taken to the District Judge by the respondent and was heard by the subordinate Judge, first Court, Jessore. The appeal was treated by the learned subordinate Judge as an appeal from an order directing an award to be filed. Three points were taken by the respondent in challenging the decision of the learned Munsif. They are: (1) That the award determined matters not referred by the submission to arbitration. (2) That the award was indefinite. (3) That the award was liable to be set aside on the ground of misconduct on the part of the arbitrators. The appellant took the point that the appeal was barred by limitation. The learned subordinate Judge held against the respondent on the first two points; but he found that the arbitrators were guilty of misconduct and that the appeal was not barred by limitation. On these findings he allowed the appeal in the following terms: Ordered that the appeal be allowed with costs. The order of the learned Court below directing the award to be filed is set aside.

(3.) Against this order the appellant has filed the present appeal. A preliminary objection is taken by the respondent that no second appeal lies. The argument in support of this objection is as follows : The appeal before the subordinate Judge was an appeal against an order filing an award passed in an arbitration without the intervention of the Court. An appeal against such an order is permitted by Section 104 (1) (f), Civil P. C., but a second appeal is prohibited by Sub-section (2) which says that no appeal shall lie from any order passed in appeal under this section. The objection is met by the appellant in this way. Learned advocate for the appellant says, first, that the appeal before the subordinate Judge was not an appeal against an order filing the award but an appeal against the decree passed upon the award and that therefore a second appeal would lie as the prohibition against second appeals contained in Section 104 (2) is restricted to appeals from orders and can have no application to decrees. Secondly, he says that as the validity of the reference to arbitration was questioned by the respondent a second appeal would lie even though the appeal be held to be one not against the decree upon the award but against the order filing the award.