Tribhovandas Somabhai Patel vs Umedbhai Shivabhai Patel and Another

V.B. Raju, J.—This revision application is directed against the order of 2nd joint Civil Judge, Junior Division, Surat, passed in Civil Misc.

Application No. 212 of 1958, directing that a decree should be passed in terms of an award. The order was passed on an application given by the

arbitrator, who was appointed by the parties by a private agreement. A reference to private arbitration was made after the suit had been instituted

but without any reference by the Court u/s 21 of the Arbitration Act. It is therefore contended that such an award during the pendency of a suit

without an order of reference by the Court as contemplated in Section 21 of the Arbitration Act is bad, and the Court was not right in passing a

decree in terms of such an award. This contention is 9bviously correct in view of the provisions of Section 21 of the Arbitration Act. Reference

may be made to Jugaldas Damodar Modi and Co. Vs. Pursottam Umedbhai and Co., No authority in support oi the contrary view is cited. The

order passed by the Court is clearly wrong and amounts to an illegal exercise of jurisdiction.

It is, however, contended by the learned Counsel for the opponent that the arbitration and the award following it should be treated as a private

Adjustment of the claim. Reliance is placed on Manila Motilal v. Gokaldas Rffvji 22 Bom. LR 1048. It is open to either party to raise this

contention before the lower Court, and the lower Court will consider whether such contention can be raised and if it can be raised in what manner

it should be decided.

The revision application is therefore allowed and the order of the lower Court passed in Civil Misc. Application No. 212 of 1958 is set aside.

No order as to costs.