Haridas Dey v. Kailash Chandra Bose

Fletcher, J.:— This is an appeal by the plaintiff against the judgment of the learned Subordinate Judge of Dacca, dated 23rd April 1915, modifying the decision of the Munsif of the same place. The plaintiff brought the suit to recover possession of a plot of land on the ground that the pro forma defendants who were his burgadars had been dispossessed by defendant 2 and defendants 1 and 3 to 7 all acting together. One defendant only, namely, defendant 2 contested the suit, and, therefore, it seems to have been assumed that under the terms of the Code of Civil Procedure the plaintiff and defendant 2—were the only parties who were interested in the matter and accordingly those two parties—the plaintiff and defendant 2 agreed to refer the matter to arbitration. The arbitrators had made their award. The award was presented to the Court and no objection within the time allowed by the Limitation Act was preferred against the award so made. The case then came on for final disposal before the learned Munsif and the learned Munsif—whether it was noticed by the parties before or not I do not know and it does not matter—proceeded in this way: First of all, he recorded evidence as against the non-appearing defendants and then he decreed the suit in the terms following: The suit be decreed in accordance with the award of the arbitrators in so far as it relates to the plaintiff's title to the land, that the plaintiff's title to the land be declared and that he do recover possession of the disputed land as against the defendant. It is quite clear that it was a good order which all the defendants were bound to obey, namely, to deliver possession of the land to the plaintiff in accordance with the judgment of the learned Munsif. Thereupon defendant 2 alone preferred an appeal to the learned Subordinate Judge. The learned Subordinate Judge dismissed the appeal of defendant 2, but set aside the judgment of the learned Munsif so far as it related to the non-contesting defendants who had not joined in the appeal to the learned Subordinate Judge. Now, we have an appeal and a cross objection.

2. The cross-objection was preferred by defendant 2, who was one of the parties who went to arbitration. His case can be very shortly disposed of.

3. He lodged no objection against the award made by the arbitrators and, in accordance with Section 16, Sch. 2 of the CPC, the Court passed a decree. It is not suggested that the decree so made is in excess of the award, nor is it suggested that it is not in accordance with the award. The provisions of the existing Code of Civil Procedure clearly prohibit questions as to the validity of the decree after it has been passed, except in cases where the decree is in excess of or is not in accordance with the award. That being so, whatever may be one's own views with regard to the order of reference made in the suit between the plaintiff and defendant 2, it is much too late now to question the validity of the decree passed on the award. The cross-objection of defendant 2 must accordingly be refused. The appeal of the plaintiff may also also be dispossed of in an equally short way. The non-contesting defendants were directed by the learned Judge of the primary Court to deliver over possession of the land to the plaintiff. They preferred no appeal against that order and lit was not competent to the learned Judge of the lower appellate Court in the appeal to which the non-contesting defendants were not parties to vary the decree of the first Court in the manner he did as regards them.

4. It is suggested that he had power under O. 41, R. 33 of the CPC. That obviously is not so. That section does not apply to a person who was not a party to the appeal. These non contesting defendants were not parties to the litigation in the lower appellate Court. Obviously, on first principles, the learned Judge in that Court could not vary the decree of the Court of first instance as regards their rights and liabilities as adiudjcated on by that Court. The appeal must therefore be allowed to this extent that the decree of the lower appellate Court, in so far as it concerns defendants 1 and 3 to 7, must be set aside and the decree of the Court of first instance as regards them will be restored. The appellant will be entitled to realize his costs in this appeal from defendants 1 and 3 to 7. The appeal as against defendant 2 will be dismissed. Defendant 2's coats in the appeal and the plaintiff's costs in the cross-objection will be set off one against the other and neither of these two parties will be entitled to claim anything against the other.

Shamsul Huda, J.:— I agree.

V.B/R.K

5. Appeal allowed.