B SITAL PRASAD Vs. CLEMENTS ROBSON AND CO

JUDGEMENT

(1.) In this case an arbitration took place between Messrs. Clements Robson & Co., an English firm with a branch in Karachi, and an Indian firm, known as Sital Prasad Sadhu Rim, of Muzaffarnagar and other places. An award was published in Karachi, on 18 December 1918, and an application to file the award under Section 11 of the Arbitration Act (IX of 1899) was made against the firm, Sital Prasad Sadhu Ram, in the Court of the Judicial Commissioner of Sind, and was disposed of by an order of the Additional Judicial commissioner, dated the 3rd Marah, directing the award to be filed. Both Sital Prasad and Sadhu Ram were served with notices of the application, and both appeared, Sital Prasad took the objection that he was not a partner. The Additional Judicial commissioner, while observing that Sadhu Ram had Bigned the reference as sole proprietor of the firm, declined to deal with the questions as to what persons constituted the firm, and as to whether Sital Prasad was one of them, In taking this view he held that the firm had been a party to the arbitration proceedings, that it was duly represented at the hearing, and that an order was applied for against the firm only, so that the constitution of the firm was irrelevant to the question which he had to decide. The Additional Judicial commissioner pointed out that the question might be raised in execution proceeding. He went on to hold that the signing of the submission and reference to arbitration, which was a necessary communicant of the making of the contract, was clearly within the general authority of a partner of the firm. This was decided on an objection raised by Sital Prasad.

(2.) It being alleged that the firm, or the members thereof, resided or had property within the Local limits of the Court of the District Judge of Muzaffarnagar, an application to transfer the order was made to the Court of the Judicial commissioner of find, at the instance of Messrs, Clements who, in reference to this award, were now in the position of decree-holders. Sital Prasad was made a party to that application, so that the Court at Sind which made the order on the 9 April 1919 in the ordinary form for the transfer of a decree certifying under Order XXI, Rule 6 of the Code, that no satisfaction had been obtained by execution, and that no execution-application had been made to the Court, must have been aware that the object of the transfer was to enable the decree-holders to apply for execution in Muziffarnagar against Sital Prasad as a member of the firm.

(3.) Following upon this, an application was made in the Court of the Additional District Judge at Meerut to whom the order filing the award had been thus transferred for execution of it, as of a decree, against the firm, through its proprietors Sital Prasad and Sadhu Ram, asking for parsonal arrest of both, and postponing any proceeding asana their property. Sital Prasad filed an objection of a rambling character the substance of which was that he was not liable. He did not distinctly allege, though he may have intended in a confused way to imply, that he was not a partner, and he did not contend that the application ought to have been made to the Court at Sind. On the contrary, his main objection was that his personal liability had been exempted under the order of that Court, an objection whish he must have known was contrary to the facts. He is also objected that a decree ought to have been prepared, which is an idle objection. It is possibly due to the nature of his objections that the Court below has gone wrong and overlooked the really vital question of fact which had to be decided.