Rajmal Girdharilal Marwadi v. Maruti Shivaram

Macleod, C.J:— The plaintiff sued to ??? an award against the defendant. Various issues were raised is the trial Court. The 4th issue was—Is the suit barred by limitation? The trial Court held that the suit was barred. It proceeded to find on the remaining issues. The result was Shat the suit was dismissed.

2. In appeal the learned appellate Judge held that the suit itself was not barred by limitation, but that it was barred by the rule of res judicata. It appears that the award was made an the 28th November 1910. The plaintiff then applied to file the award under para. 20 of the Second Schedule to the Code of Civil Procedure. That application was rejected on the 12th January 1914. The plaintiff could appeal against that order under section 101 of the cpc. The plaintiff did appeal to the District Court, and also applied to the High Court in revision, but in bolt Courts the lower Court's decision was upheld.

3. It has now been argued that the question whether the plaintiff is entitled to get a decree on the award is res judicata and this suit was therefore barred. It can only be res judicata it the application to file the award can be considered as a suit. No doubt the application under para. 20 of the Second Schedule to the Code of Civil Procedure is numbered and registered as a suit. But it does not follow that it thereby becomes a suit within the meaning of the word “suit” in the Code. The procedure followed is not that for a suit, but the procedure regulated by para. 21. The Court can only consider whether any ground such as is mentioned or referred to in paras. 14 or 15 is proved, and the Court has power either to order the award to be filed or to refuse to file the award. If it orders the award to be filed, then it must pronounce judgment according to the award, and upon the judgment so pronounced the decree shall follow. Under section 11 of the cpc no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. It cannot be said that the proceedings under paras. 20 and 91 of the Second Schedule were proceedings in a suit, though for the purposes of convenience they may be numbered and registered as suit. Order IV refers to the institution of suits. Rule 1 says that every suit shall be instituted by presenting plaint to the Court or each offiect as it appoints in this behalf. Then the following Orders refer to the issue and service of summons and the proceedings that must follow when a regular suit has been instituted.

4. This question was decided in Kunji Lal v. Durga Prasad (1) in which the Court felt itself bound to follow the series of decisions of its own Court, although the learned Judges seemed to think that there were some expressions in the case of Ghulam Khan v. Muhammad Hassan (2) from which it might be considered that their Lordships of the Privy Council were of opinion that an order made under old S. 525 was a decree. No doubt a decree can be made when the Court pronounces judgment on the award, and there being no appeal against that, the question whether any suit could be filed to enforce the award would never arise. An order refusing to file an award is a different matter. It cannot be considered as a decree. In my opinion, therefore, this suit is not barred by res judicata. It is not barred by limitation, because it seems be settled now that a suit to enforce an award is a suit, not provided by any other article of the limitation act. Then the time is six years under Article 120. The appeal therefore must be allowed and the case remanded to the lower appellate Court for decision on the remaining issues. The appellant must get his costs of the appeal.

Fawcett, J.:— I agree that the word “suit” in section 11 of the cpc cannot properly be extended to cover an application under para. 20 of the Second Schedule of the Code, even though such application is to be registered as a suit. In Gokul Mandar v. Pudmanund Singh (3) their Lordships of the Privy Council with reference to Section 13 of the then CPC, corresponding to the present section 11, made the well-known remark that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or to go outside the law and the enactment according to its true construction. Also is Ram Kirpal v. Rup Kuari (4) their Lord-ships held that fragment is execution proceedings would have a binding farce not under this particular section, but upon genera principles of law. It is upon such general principles that the learned District Judge has apparently gone in holding that the present suit is barred. But the adjudication on an application to file an award under para. 20 is restricted under para. 91 to a particular class of questions and I do not think in those circumstances that the general principles of res judicata should be held to be applicable so as to bar the right of suit to a person who has succeeded in obtaining the award. The only authority on the question that has been cited to us is also against any such doctrine.

5. As regards the question of limitation, it has already been held in this Court in Fardunji Edalji v. Jamsedji Edalji (5) that a suit on an award to recover a certain sum of money allowed by the arbitrator is not a suit for specific performance, and therefore this Court should agree with the decisions which hold that such a suit as the present does not fall under Article 119 of the Indian Limitation Act.

6. Since the oral delivery of the above judgment my attention has been drawn to the observations of the Judicial Committee in Muhammad Newaz Khan v. Alam Khan (6) which according to the view taken in Ponnusami Mudali v. Mandi Sundara Mudali (7) clearly imply that Any matter which is directly and substantially in issue and is determined in a proceeding under section 525 (corresponding to para. 20 of Schedule II of the present Code) would be res judicata in any subsequent litigation between the same parties. With due respect it seems to me that their Lordships left entirely open the question whether an application under S. 525 is a sail such as is contemplated in S. 13 (see at page 419). But even assuming it was such a suit, they held that the mere refusal to file an award would not constitute a binding judgment against the validity of the award, unless the particular ground on which its validity is assailed was definitely raised and put in issue and made the subject of a trial.

7. In the present case the question of the validity of the award does not appear to have been so tried in the proceedings on the application to file the award; for the application was summarily rejected on the ground that, treated as a suit, it was time-barred.

8. Appeal allowed.