Raj Kumar Lal vs Bulaki Miyan

A Small Cause Court decree for Rs. 359 odd was obtained on the 23rd December 1910. In the course of an execution proceeding which was instituted on the 23rd September 1915, the judgment-debtor was arrested. He was released on furnishing security on the 8th January 1916. On the 7th February 1916 the decree-bolder and the judgment-debtor put in a joint petition stating that the dispute between them had been referred to three persons named in the petition. On the 28th February 1916 these persons gave an award to the effect that the judgment-debtor must pay Rs. 83 to the decree-holder on the following day the 29th, and in the event of the decree-holder declining to accept it, the money may be deposited in Court. On the following day the decree-holder put in a petition asking that the proceeding in execution might be pressed. On 1st March the judgment-debtor filed an application offering to pay Rs. 83. The decree-holder objected to the receipt of this amount from the judgment debtor in discharge of his decree upon the ground that the arbitrators had exceeded their authority by going behind the decree. This objection by the decree-holder was overruled and the Subordinate Judge permitted the judgment-debtor to pay Rs. 83 in discharge of the decree and dismissed the execution proceeding. Against that order the decree-holder has appealed to this Court.

In the first place it is quite clear that no appeal lies, the proceeding being in execution of a Small Cause Court decree. We have then to consider whether we should interfere in revision u/s 25 of the Provincial Small Cause Courts Act in spite of the opinion of the Privy Council that any such proceeding in the case of an arbitration award is very much to be deprecated.

The first ground taken before us is that the Subordinate Judge should not have permitted a reference to arbitration of this kind during the course of an execution proceeding. We have been referred to various cases in which the opinions of Judges have somewhat differed as to whether a Court should or should not make a reference to arbitration during a pending proceeding, or should permit the parties to adjourn the hearing in order to enable a reference to arbitration to be made. But the balance of authority certainly is in favour of holding that after an award is made and is presented by the parties there is no reason why the Court should not accept it as an adjustment of the suit. We have been referred to the provision under which Order XXIII, rule 3 is said not to be applicable to execution proceedings. On the other hand there is a provision in Order XXI under which a decree can be adjusted, and we are of opinion that the present proceeding which merely resulted in an order that a certain sum should be received in full satisfaction of the decree was an adjustment of the decree. We are satisfied from the agreement of reference to arbitration that the arbitrators did not go beyond what the parties intended they should do when the matter was referred to them, and although in order to arrive at the amount which the judgment-debtor should pay to the decree-holder the arbitrators appear to have considered among other items the question of the equity arising out of the claim made in that suit by the decree-holder, yet I am of opinion that it was open to the arbitrators on a reference made to them, to decide, taking all the circumstances into consideration including the circumstances arising out of the suit itself, how much it would be fair that the judgment-debtor should pay to the decree-holder in discharge of his decree. It is contended also before us that the decree-holder had revoked the reference to arbitration. This objection was not made before the Subordinate Judge although it had been mentioned in a previous petition before the arbitrators filed immediately after the award had been given which he disliked. It is quite clear that the decree-holder was not prepared to support the allegation made in that petition by evidence and it was not pressed when the matter came before the Subordinate Judge to decide the point. It is also contended that the order of: the Subordinate Judge is not in accordance with the award inasmuch as the arbitrators had directed that the money should be offered to the decree-holder on the 29th February and should only, in the event of the refusal of the decree-holder, be deposited in Court. Having regard to the nature of the objection filed by the decree-holder, on the 29th February it is quite clear that he would not accept the money from the judgment-debtor. It is, therefore, useless to go into the question whether the money had been actually tendered or not. The decree-holder made no objection that the order would not be in accordance with the award of the arbitrators upon the ground that the money had not been offered to him. That question was not gone into and it was clearly quite unnecessary to do bo owing to the obvious fact that the decree-holder disliked the award which had been made. We are quite satisfied that no sufficient reason has been made out to justify us in taking a course which would only be taken in very exceptional circumstances, and that is to interfere with the result of an arbitration in revision.

The appeal is dismissed with costs.