Bookmark
PDF
Share
CaseIQ

Gunga Narain Ghose v. Ram Chand Ghose

Calcutta High Court

Jul 29, 1873

Judgment

Subsequent
References

CaseIQ

Case Information

CITATION CODES

citation codes

CASE NO.

Special Appeal No. 1718 of 1872

Attorney(S)

Mr. G. Gregory (with him Baboo Bhawanichurn Dutt) for the appellants.

Baboos Romesh Chunder Mitter and Rashbehari Ghose for the respondents.

Baboo Romesh Chunder Mitter for the respondents. — It is not imperative on the Munsif to give ten days for filing objections to an award. Even if it were, that time apparently was not wanted here, because the next day the plaintiffs filed their objections. [Couch, C.J— That was done under compulsion of the Munsif's order giving only one day.] Still the judgment is according to the award, and no appeal lies — Sreenath Ghose v. Raj Chunder Paul(1). The Court did not see cause to set aside the award, and refused the application of the plaintiffs. [Couch, C.J— The Munsif would not entertaiu this application because he says the plaintiffs did not charge the arbitrator with corruption or “partiality,” whereas the words of s. 324 are “corruption or misconduct.”] No doubt, the Munsif is wrong there, but so long as his judgment is according to the award, it is final — Ramonoogra Chobey v. Mussamat Putmoorta Chobayan(2).

Mr. G. Gregory— A judgment cannot be considered a judgment according to an award, within the meaning of s. 325 of Act VIII of 1859 so as to be final, unless the requirements of the law are fulfilled. By s. 324 an award is liable to be set aside for corruption or misconduct. The petition of the plaintiffs of the 26th September clearly charged the arbitrator with misconduct, yet no enquiry took place regarding the matters alleged therein. And by the same section parties are entitled to have ten days to apply to have the award set aside; here the Munsif gave them only one day, and he gave his judgment in the case before ten days had elapsed from the filing of the award. Besides, on reading the Munsif's judgment, it is clear he decided the whole case himself, and recorded his reasons in support of his decision upon every issue, and he expressly professes to decide the case on its merits. Having regard to all these circumstances, the way in which the Munsif's decision is worded, and the departure from the prescribed forms of the law regarding awards, it cannot be said that his reasons are mere surplusage, and that his decision is according to the award, and therefore final. It is his own judgment in the case, and an appeal will lie from such judgment.

JUDGES

Sir Richard Cough

Kt.

Chief Justice

Mr. Justice Glover

ACTS

No Acts

See more information ... Less ...

Couch, C.J:— The reason for the Judge's dismissing the appeal is given in a few words. He says that the “Munsif's proceeding contains much surplusage, but that does not prevent it from being a judgment according to the award.” But the whole question is whether that part of the Munsif's judgment in which he refers to the evidence in the case, and professes to be founding his decision upon it, and not upon the award, can be considered as surplusage, — whether the fair construction of his judgment is not, that he considered the case as it was proved, and having done that, brought in the award, not as the sole foundation of his judgment, but as confirming the view which he had taken in the previous part of it Even if all the proceedings in the arbitration had been regular, this would probably be the most natural construction to put upon the judgment; for if the Munsif was doing only what the Act requires, giving a judgment according to an award, which he had decided ought not to be set aside, all he had to do was to state that he gave his judgment according to the award, and to make the decree in conformity with it. I do not think we ought to suppose that he introduced into his judgment all the other matter without some reason.

But when we look at the proceedings, there is good reason for holding that this judgment was not merely a judgment upon the award. By s. 324 of the Civil Procedure Code, the plaintiff had ten days to apply to set aside the award. The Munsif, disregarding that, made an order that the objections to the award should be filed within one day. It was not to be expected that the plaintiff would disregard that order, irregular and improper as it was, and his filing his objections cannot be considered a waiver of the irregularity. He never consented to take less than the time which the law allowed him; he did not voluntarily file his objections in one day, but upon the compulsion of the order of the Munsif. And although he had given in his objections, the Munsif ought I think to have waited until the expiration of the ten days before he gave a judgment, if he intended to give it as upon the award. The law allows ten days, and it appears to me that the decision which is referred to in Mr. Broughton's edition of the Procedure Code is a right one.

I think we must consider the irregularity of the proceeding s when we are determining the nature of the judgment. It appears to me that the Munsif did not determine to proceed strictly under the Act as upon the award, and that he thought, as I have observed on other occasions Munsifs have done, that the fairest and best mode of treating the matter was to see whether, in his judgment, the award was a right one. Accordingly, he gave what he considered a right decision upon the merits, which was also in accordance with the award. We must not consider that as a judgment under s. 325 which is declared to be final, but a judgment which is open to appeal. In order to make it I final under s. 325, I think it should appear that all the 1 proceedings have been regular, and the directions of the Act have \ been complied with, which they were not in this case.

I therefore think that the decision of the Judge was wrong. His decree must be reversed, and the case must be remanded to 1dm for re-trial. The costs will follow the result.

Appeal allowed.