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TMI Blog1952 (9) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... ent branches. According to the plaintiffs, from this time they and their father formed a joint Hindu family and the defendants 1 to 6 formed another joint Hindu family, and the undivided property specified in Schedules B and C to the plaint re- mained in the common possession of the two families. On 9-7-1940, the two families appoint- ed Rai Saheb Satruhan Prasad Sahi as sole arbitrator to decide certain disputes pending between them and to divide such of the movable and immovable properties that still remained common to them. The arbitrator made an award on 23-5-1941. By this award he directed as regards the property in Schedule B, which is land and the house standing thereon at Sita- marhi, that if the plaintiffs paid to the defendants the sum of ₹ 2000/- within six months as compensation for expenditure incurred by the defendants in excess of their proper share for construction of the building after the earthquake of 1934 out of their own funds, the plaintiffs would be entitled to a hall-share in the property with the right of joint ownership and possession, failing which it would vest exclusively in the defendants. As regards the property in Schedule C which consists of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from investigating the validity of the reference and the award. He rejected the defence story as regards the house at Sitamarhi and the alleged division of the property in Schedule C and decreed the suit for partition accordingly, 5. The decision of the Subordinate Judge covers the property in Schedule D. Owing to an omission of the office of the Subordinate Judge to amend the plaint in accordance with the order dated 24-7-1946, the decree has been wrongly drawn up and the property in Schedule D is omitted therefrom. The necessary correction will now have to be made in both the plaint and the decree. Mr. Lalnarayan Sinha, who represented the appellants, made it clear that the appeal does not relate to the property in Sch, D. So far as that property is concerned, therefore, the decree is not challenged. 6. Three grounds have urged before us : (1) that the suit as regards the properties in Schedules B and C is barred by reason of the award made by the arbitrator; (2) that the suit being based on an award which was not filed under the provisions of Section 14, Sub-section (2), Arbitration Act, 1940, is not maintainable; and (3) the findings of fact in relation to the propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cks of the house which had collapsed during the earthquake be given to one Ramdeo Babu. A note on this letter made by Kamleshwarinandan, plaintiffs No. 2, states that he is writing to Ramdeo Babu about it, and as I myself am erecting my house at Sitamarhi on the same site, it is no more possible for me to return the bricks at this stage. The letter and the note thereon are dated some time in November, 1937. They are not consistent with the property being the property of Siakishori Kuer. Finally, there is the deed of surrender, Exhibit 8, by which Musammat Ramsakhi, widow of Nemdhari Singh, surrendered the properties of the Athari estate in favour of Siakishori Kuer. The property in Schedule B is excluded from this deed. Oral evidence is hardly sufficient to outweigh the documentary evidence, and in this case the oral evidence, which is very scanty, has on its own merits been rejected by the Subordinate Judge. For these reasons I would accept the finding of the Subordinate Judge as regards this property. 8. As regards the property in Schedule C, the finding of the Subordinate Judge is not seriously challenged. This is not surprising because the case attempted to be made out in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ward is entitled to that respect, which is due to the judgment of a court of last resort. The award is in fact a final adjudication by a court of the parties' own choice and until impeached upon sufficient grounds in an appropriate proceeding, an award, 'which is on the face of it regular', is conclusive upon the merits of the controversy submitted, unless possibly the parties have intended that the award shall not be final and conclusive. See -- 'Com mings v. Heard', (1869) 4 Q B 669 : 10 B. Section 606; -- 'Sweet v. Morrison', 116 N. Y. 19 : 15 Am. St. Rep. 376 -- 'Harris v. Social M. Co.', 41 Rule I. 133 : 5 Am. Rep. 549. To put the matter in another way, as the ordinary rule, 'a valid award' operates to merge and extinguish all claims embraced in the submission, and after it has been made, the submission and award furnish the only basis by which the rights of the parties can be determined, and constitute a bar to any action on the original demand; See -- 'Curley v. Dean', 4 Coun. 259 : 10 Am. Dec. 140; --'Walsh v. Gilmor', 3 Harris Johnson, 383 : 6 Am Dec. 502 and -- 'Clegg v. Dear-den', (1848) 12 Q. B. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (13) The effect of this section was considered in -- 'Ramchander v. Munshi', 28 Pat 569 in which Ramaswami, J. relied on -- 'Moolchand Jothajee v. Rashid Jamshed Sons Co.', AIR 1946 Mad. 346; -- 'Deokinandan v, Basantlal', 45 Cal W N 881 and -- 'Ratanji Virpal Co. v. Dhirajlal Manilal', ILR (1942) Bom 452 for the proposition that a suit will not lie to enforce an award. Mr. Lalnarayan Sinha's contention is that a distinction must be drawn between a right and the remedies open for enforcing it; Section 32 has taken away one of the two remedies available in respect of an award of arbitrators, but the legal effect of the award as a decree finally determining the rights of the parties remains and, therefore, -- 'Krishna Panda v. Balaram Panda', 19 Mad 290 and -- 'Bhajahari Saha v. Behary Lal', 33 Cal 881 are still good law. This contention is supported by the process of reasoning in -- 'Dewaram v. Harinarain', 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co.', ILR (1946) Bom. 452 which was cited with approval by Ramaswami, J. in --'Ramchander v. Munshi', 28 Pat 569 : Further, under the present Act no proceedings can be taken on the award till after it has been filed, and I fail to see how a party can possibly be prejudiced by the existence of an award which has not been filed in Court. Under the old Arbitration Act it was competent to a party who obtained an award without filing it to file a suit thereon. Further, the award became enforceable as a decree as soon as it was filed. But under the present Act all proceedings with regard to the arbitration agreement or the award have to be taken as provided by the Act and before the tribunal indicated by the Act. Section 32 specifically provides that no suit shall lie on any ground 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 the said Act, and under Section 17 of the Act the Court has to pronounce judgment according to the award and a decree follows. It is only this decree that can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make an application to get the award filed in Court, and pending the disposal of that application, he could ask for a stay of the suit. Then, as soon as the award is made a rule of the Court, it is available to the defendant as a bar to the suit. 14. This disposes of Mr. Lalnarayan Sinha's first point, and I turn to his second point, namely, that the suit, being based on an award which was not filed under Section 14, Sub-section (2), Arbitration Act, 1940, is not maintainable. I have already noticed that -- 'Ramchander v. Munshi', 28 Pat 563 is an authority for the proposition that such a suit does not lie, and it is merely a matter of interpretation to determine whether in the present case the suit is based on the plaintiffs' original title or on their rights as determined by the award. At first sight it would appear that the suit is based on the award and this was the interpretation which the Subordinate Judge appears to have been inclined to place upon it. It is noticeable, however, that the plaintiffs have not placed on the record, or produced at any time during the suit, the award itself although according to paragraph 6 of the plaint the arbitrator sent o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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