Bapna, J. - (1.) THIS is an appeal against an order of the learned Additional District Judge, Jaipur, dated 31 -5 -1952, in a pending suit.
(2.) THE respondent instituted a suit for recovery of Rs. 21,646/12/3 against the appellant Phool Narain, which was contested by the appellant on various grounds. Various issues were struck, and 19 -5 -1952, was fixed for the recording of the evidence of the defendant himself The defendant appeared in the witness box, and instead of making any statement in respect of the matters in dispute stated that the parties had appointed arbitrators without intervention of the court, who fixed Rs. 7,816/ - to be payable to the plaintiff in respect of his claim, and that this amount had been paid under a receipt executed by the plaintiff, which was in the possession of the arbitrators. Simultaneously with the above statement, an application was presented before the court by Ganpat Rai to the effect that the said Ganpat Rai and one Laduram were appointed arbitrators by the parties, who gave an award that the defendant was only liable to the extent of Rs. 7,816/ -, and the said amount was paid to the plaintiff in their presence, and a receipt was executed by the plaintiff. The award and the receipt were produced, and it was suggested by Ganpat Rai that the suit be dismissed. The plaintiff immediately made an application that he had never agreed to have his claim adjudicated by any arbitrator,: that he had never appointed any arbitrator, that he was not aware of any award, and that he had not received any amount from the defendant, and the signatures purporting to have been affixed by the plaintiff on the award and the receipt were forgeries, and the entire story of arbitration, of award, and the subsequent payment by the defendant to the plaintiff were concoctions. Certain more objections were raised by the plaintiff by a separate application dated 27 -5 -1952. The court framed the following issues on 29 -5 -1952. 1. Whether the award is invalid being against the provisions of the Indian Arbitration Act and cannot be given effect to by the court? 2. Whether the award ought to be on a stamp paper? If so, what is the stamp duty and penalty? Whether there was an arbitration agreement between the parties on 4 -5 -52? If so, what were its terms?
(3.) WHETHER the alleged award was made by the arbitrators duly appointed by the parties and they are bound by it? The learned Additional District Judge heard arguments on issues Nos. 1 and 2, and held that the award, as a result of the alleged arbitration outside the court, was illegal. He also held that the award could not also be recorded as adjustment under O. 23, R. 3, Civil P.C. On issue No. 2 he held that an award required a stamp paper of Rs. 10/ -, and was inadmissible unless the penalty was paid by the party concerned. He accordingly refused to take the award into consideration, and directed the defendant to continue his evidence on the next date of hearing. The defendant has filed this appeal. 3. It was conceded by learned counsel for the defendant -appellant that an arbitration in a pending suit without the intervention of the court was not enforceable as an award, but he contended with great emphasis that in the present case the allegation was that the award had been accepted by the plaintiff in witness whereof he had affixed his signatures to the award, which contained a recital that the plaintiff had agreed to receive Rs. 7,816/ - in full satisfaction of his claim. It was also contended that the subsequent receipt by the plaintiff in full settlement of his claim amounted to an adjustment of the claim, and should have been recorded as such under the provisions of O. 23 R. 3, Civil, P.C. 4. In respect of the last contention it need only be said that no application was made before the lower court by the defendant for recording of the adjustment on the basis of the receipt alleged to have been executed by the plaintiff in full satisfaction of his claim, and there is no finding of the lower court as to whether the receipt dated 4 -5 -1952, alleged to have been executed by the plaintiff was genuine. That is a question of fact, and will have to be tried by the lower court, and, therefore, no opinion need be expressed by this Court on that question.;