Calcutta High Court
Dr. Ramesh C. Vaish And Ors. vs Banwarilal Jaipuria And Ors. on 6 April, 1999
Equivalent citations: 2000(1)ARBLR241(CAL), AIR 1999 CALCUTTA 339, (2000) 1 ARBILR 241 (1999) 2 CAL WN 499, (1999) 2 CAL WN 499
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This appeal is directed against an order dated 10-8-1994 passed by a learned single Judge of this Court whereby and whereunder the application filed by the appellant purported to be under Section 47 of the Code of Civil Procedure was dismissed.
2. The fact of the matter briefly stated is as follows :
A partnership firm in the name of Anandram Gajadhar was established as far back as in 1924. Deeds of reconstitution of partnership were executed by the parties from time to time and admittedly the last deed of partnership was executed on 7-3-1940. The partnership firm consisted of seven partners, namely, Gajadhar Jaipuria, Puranmal Jaipuria, Mangturam Jaipuria, Vikram Jaipuria, Motilal Jaipuria, Ramnarayan Ojha and Shiv Narayan Poddar.
3. On or about 15-12-1941, an agreement was entered into by and between the partners of the said partnership firm wherein it had been stated that any work done or to be done or will be done in the name of any partner or partners or any other firms or anything other name of his sons and the same shall not be considered to be belonging to such partner or partners but shall be considered to be Anandram Gajadhar. One Mangturam Jaipuria thereafter shifted to Kanpur. Disputes and differences amongst the partners of the said firm arose in the year 1957. With a view to resolve the said disputes and differences, an arbitration agreement was entered into by and between the parties on 2-5-57 in terms whereof Sri G. D. Birla failing which Sri B. M. Birla was appointed as 'sole Arbitrator. However, on 13-3-1961 all the concerned parties agreed that the disputes and difference between them be referred to the sole Arbitrator of Sri B. M. Birla. The said Arbitrator having entered into reference made and published an award on 25-5-1967. The said award had been filed in this Court in June, 1967.
4. An objection to the said award was filed by the appellants herein inter alia on the ground that the same being not a registered one was illegal and, thus, could not be made a rule of Court. In the said objection misconduct on the part of the Arbitrator had also been alleged. By an order dated 2-5-1972, a learned Judge of this Court set aside the said award and refused the same to be made a rule of Court. The respondent No. 1 herein being aggrieved by and dissatisfied with the said order preferred an appeal thereagainst which was marked as Appeal No. 229 of 1973. A Division Bench of this Court consisting of S. C. Sen, J. (as his Lordship then was) and B. P. Banerjee, J. allowed the said appeal inter alia holding that neither any misconduct has been committed by the Arbitrator nor the disputes and differences amongst the parties being referable to the assets of the partnership, the award required any registration. The relevant portion of the said award reads thus :--
"(1) I award and direct that Shri Mangturam Jaipuria, Sri Sitaram Jaipuria, Shri Rajaram Jaipuria, Smt. JamunaDevi Jaipuria, Smt. Gayatri Devi Jaipuria and Smt. Suniti Devi Jaipuria will jointly and severally pay to the persons mentioned in Column I of the first schedule hereto the amounts respectively mentioned against their names in the column II of the said schedule with interest thereon at the rate of 7 1/2 per annum from the date hereof until payment, (2) I further award and direct that Shri Mangturam Jaipuria, Shri Sitaram Jaipuria, Shri Rajaram Jaipuria, Smt. Jamuna Devi Jaipuria, Smt. Gayatri Devi Jaipuria and Smt. Sumiti Devi Jaipuria will jointly and severally pay to the persons mentioned in Column I of the second schedule hereto the amounts respectively mentioned against their names in column II of the said schedule with interest thereon respectively at the rate of 71/2% per annum from the date hereof until payment.
(3) I declare that all the assets (including all the ordinary shares of Swadeshi Cotton Mills Co. Ltd.) of the firm of Messrs. Anandram Gajadhar and all its branches shall belong to Shri Mangturam Jaipuria, Shri Sitaram Jaipuria and Shri Rajaram Jaipuria absolutely. As regards preferred ordinary shares of Swadeshi Cotton Mills Co. Ltd. the same will belong to the respective parties in whose name the same stand transferred and registered. The aforesaid Shri Mangturam Jaipuria, Shri Sitaram Jaipuria and Shri Rajaram Jaipuria will meet all liabilities (except tax liabilities), of Messrs. Anandram Gajadhar and its branches and keep the parties to the above arbitration agreement fully indemnified against any action, claim, demand or proceedings in respect thereof. As regards tax liabilities the parties will respectively meet the same in accordance with their liabilities according to the provisions of Income-tax laws concerning the same.
(4) Except as aforesaid none of the parties will have any claim against the others or any of them with regard to the subject-matter of this Arbitration.
(5) Each party will bear and pay its own costs of the Arbitration proceedings."
5. However, be it recorded that the said award contains various schedules including a schedule containing the names and descriptions of \25 concerns including the companies registered under the Companies Act which, thus, became the subject-matter of the said Award.
6. In view of the aforementioned judgment and order of the Division Bench dated 31-7-90, a decree was directed to be passed in terms thereof. A special leave application filed by Rajaram Jaipuria questioning the correctness of the said judgment before the Supreme Court of India was dismissed by an order dated 18-8-92.
7. On an about 23-4-93 the first respondent herein made an application for execution of decree dated 1 -8-90 in respect of the amount awarded to him under paragraphs 1 and 2 of the Award. The appellants herein filed an objection purported to be under Section 47 of the Code of Civil Procedure. Although the said objection was purported to have been filed in terms of the Section 47 of the Code of Civil Procedure, curiously enough some of the prayers made therein do not strictly come within the purview thereof. The reliefs prayed for in the said objection were :--
"a) It is declared that the Decree dated August 1, 1990 is indivisible and that none of the parties thereto is entitled to execute the same without first performing his or their obligations thereunder;
b) The question referred to in the petition relating to the execution of the Decree dated August 1, 1990 being Annexure 'C' hereto, be determined by this Hon'ble Court under Section 47 read with Section 151 of the Code of Civil Procedure;
c) Banwarilal Jaipuria, the appellant Smt. Santosh Devi Jaipuria and Smt. Shilwanti Devi Jaipuria respectively the fifty-first and fifty-third respondents, and the members of their respective branches be examined so as to ascertain the assets of the firm of M/s. Anandram Gajadhar that are in their possession, custody or control;
d) Upon such examination the appellant and the said fifty-first and-fifty-third respondents and the members of their respective branches be directed to deliver up possession of the assets of the said firm beside compensation and interest on the basis mentioned in the petition within such time and in such manner as to this Hon'ble Court may deem fit and proper;
e) An enquiry be made on the basis mentioned in the petition as to what compensation is payable by the appellant and the fifty-first and fifty-third respondents for the wrongful detention of the assets of the said firm of M/s. 'Anandram Gajadhar' by themselves or by the members of their respectives or by the members of their respective branches, and the same be directed to be paid by them besides interest in terms of the said Decree within such time as to this Hon'ble Court may deem fit and proper;
f) It be declared that unless the appellant and the fifty-first and fifty-third respondents and the members of their respective branches or families first deliver up possession of the aspects of the said firm M/s. Anandram Gajadhar besides compensation and interest, as mentioned in the petition in terms of the said Decree they and, in particulars the appellant are not entitled to execute the same;
g) Injunction restraining the appellant, his servants, agents and/or assigns from in any way or manner proceeding with his execution application initiated by the Tabular Statement dated December 27, 1992 on from enforcing the said Decree."
8. Shortly p'ut, the objection of the appellant in their aforementioned application under Section 47 of the Code of Civil Procedure was that the amount awarded in favour of the respondents herein could not be put in execution unless they comply with their part of the obligation as contained in paragraph 3 of the said award. In other words according to the appellants, execution of the award as stated in paragraphs 1 and 2 thereof are contingent upon fulfilment of their purported obligations contained in paragraph 3 thereof i.e. the same is dependent upon grant of possession of the premises to be transferred over to them in respect of the assets of the partnership firm as recorded therein. The respondents hereinbefore the learned trial Judge inter alia contended :--
1) The award is a severable one and execution of paragraphs 1 and 2 of the Award is not dependent upon the alleged compliance of paragraph 3 thereof.
2) That part of the award which is contained in paragraph 3 thereof is declaratory in nature and thus is not executable.
9. The aforementioned contention raised on behalf of the respondents found favour with the learned trial Judge. Hence this appeal.
10. Mr. Anindya Mitra and Mr. Tebriwal the learned Senior Counsel appearing on behalf of the appellants inter alia submitted:-- (1) that the learned trial Judge erred in holding that the award is not a composite one. According to the learned Counsel the entire award should be read as a whole and so read it would be evident that the arbitrator who was a businessman clearly directed division of the assets of the partnership firm M/s. Anandram Gajadhar and other concerns which are 125 in number the list whereof had been stated in schedule 1 appended thereto. (2) The Court should construe an award made by arbitrator liberally and in view of the fact that the arbitrator was merely a businessman, the intention should be culled out from the nature of the disputes and differences amongst the parties. (3) In any event, the word 'belong to absolutely' clearly not only encompass within the meaning declaration of title but also possession of the properties mentioned therein. (4) In view of the fact that a decree for declaration can be passed only by a Civil Court in exercise of its jurisdiction under Section 34 of the Specific Relief Act and no such power having been conferred under the Arbitration Act, 1940, the arbitrator cannot make any declaratory award and, thus, award made by arbitrator should be treated to be final. (5) No suit is maintainable for enforcement of the award keeping in view the provision of Section 32 of the Arbitration Act.
11. Mr. Jauanta Mitra the learned Senior Counsel appearing on behalf of the respondent No. 1, on the other hand, submitted that after coming into force of Code of Civil Procedure (Amendment) Act, 1976 in terms whereof Section 2(2) of the Code of Civil Procedure has been amended, an order passed under Section 47 of the Code of Civil Procedure has been excluded from the definition of a 'deemed decree' and, thus, the appeal is not maintainable. In support of the said contention reliance has been placed on Pratap Narain Agarwal v. Ram Narain Agarwal ; Challa Ramamurty v. Pasumarti Adinarayana Sons Regd. Firm, ; Masomat Narmada Devi v. Ram Narain Singh, .
12. According to Mr. Mitra from the averments made by the appellants in their purported objection under Section 47 of the Code of Civil Procedure, it would appear that they invited the Court to go into the question as regard the executability of the decree and/or the interpretation thereof and in that view of the matter they are estopped and precluded from contending the order passed by the learned trial Judge is a nul-
lity. The learned Counsel submits that like a declaratory decree, declaratory award can also be passed and as the executing Court cannot go behind the decree the only remedy of the person in whose favour such declaration has been made is to file a suit. Reliance in this connection has been placed on Potti Venkata Kasi Viswanadham v. Vallabha Vyas, ; Shyam Charan v. Satya Prasad, reported in AIR 1923 Cal 252; Meghram Shah v. Rajabansi Lal, ; Rajasthan S.R.T.C. v. Ladulal Mali, ; State of Madhya Pradesh v. Mangilal Sharma, and Bhawarlal Bhandari v. Universal H.M.L. Enterprises, .
13. The learned Counsel submits that despite the bar under Section 32 of the Arbitration Act, a suit would be maintainable where an award is merely a declaratory in nature. Reliance in this connection has been placed on Kailashpati Singhania v. Ram Gopal Gupta, and Sant Lal v. Ramaya Ram, reported in AIR 1938 Lahore 177.
14. Mr. Jaideep Kar, the learned Counsel appearing on behalf of the respondents 51, 52, 53, 56, 57, 59, 61, 62, 63, 64, 66 and 67 submits that his clients have nothing to do with the application for execution of the decree filed by the respondent No. 1 as they are independent decree-holders and they have filed a separate execution case. The learned Counsel pointed out that the learned trial Judge has rightly held that as several properties stand in the name of the persons who are not connected with partnership firm, by reason of the award no decree has been or could be passed cancelling the deeds standing in their names or adjudicating upon the right, title and interest of the parties who are not partners of the said firm. The learned Counsel contended that in view of the order dated 31-7-90 and 1-8-90 passed by the Appeal Court in Appeal No. 229/73 the contention raised in this appeal must be held to be barred by the principles of constructive res judicata. It was submitted that the appellants had raised pleas in this appeal which had not been raised before the learned trial Judge at all.
15. Mr. Ghosh, the learned Counsel appearing on behalf of the respondent Nos. 48 and 49, inter alia, submitted that a bare perusal of the first schedule of the award would clearly show that money has been directed to be awarded in favour of such person who are not concerned with the purported assets of the partnership firm as stated in Annexure-3 of the said award. According to the learned Counsel his clients are not concerned with the implementation or non-implementation of paragraph 3 of the award.
16. Mr. Bachawat, the learned Counsel appearing on behalf of the respondent No. 35 submits that his client is neither a judgment-debtor nor a judgment-creditor but merely in possession of one of the properties. According to the learned Counsel, there had been no reciprocity between his client and the appellants herein and, thus, the documents which stand in the name for his client cannot be directed to be cancelled by enforcing the said award.
17. Mr. Tebriwal, the learned Counsel appearing on behalf of the appellants in reply submitted that this appeal is maintainable in view of the decision of the Division Bench of this Court in Indrajmal Shyamsukha v. Bhagat Singh Dugar, reported in (1991) 2 Cal LJ 321 and Union of India v. Jagat Ram Trehan & Sons, .
18. Before proceeding to advert to the points at issue, it may be placed on record that the appellants herein as also the respondents other than respondent No. 1 have also filed application for execution of the decree.
19. One of the purported questions, which arise for consideration is as to whether the impugned order is appellable one.
20. Sections 47(1), 104 and 105 of the Code of Civil Procedure read thus:--
"Section 47(1)-- All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
Section 104(1)-- An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders.
(2) -- No appeal shall lie from any order passed in appeal under this section.
Section 105(1)-- Save as otherwise expressly pro-
vided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in Sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."
21. A combined reading of the provisions referred to hereinbefore, in no uncertain terms shows that an order passed under Section 47 of the Code of Civil Procedure is not an appellable one.
22. A Special Bench of this Court in which one of us (S.B. Sinha, J.) was a member in Union of India v. K. Satyanarayan & Co., reported in (1995) 1 Cal LJ 458, inter alia, taking into consideration the decisions in State of W.B. v. Guarangalal Chatterjee and Santosh Kumar Agarwal v. Phalguni Banerjee, reported in 1994(1) Cal HN 113, held :--
"An appeal is a creature of a statute. The Parliament in its wisdom may not provide for an appellate forum against some orders and may provide appeals on limited ground against the orders passed by a Court or Tribunal. Such appeals may also be conditional ones. Even an appeal may be maintainable at the instance of one party, but only a limited appeal may be maintainable at the hands of the other e.g. an appeal under the Motor Vehicles Act. The right of appeal when it is provided is a substantive right. However, as indicated hereinbefore, an impairment of the right of appeal by putting restriction therein is permissible in law."
23. This Court distinguished the decision of the Apex Court in Shah Babulal Khimji v. Jayaben D. Kania, , and held :--
"Mr. Mitra relying upon the observations of the Supreme Court in paragraphs 33 and 34 in Khimji's case submitted that from a perusal thereof it would appear that the Supreme Court has clearly held that Section 39 of the Arbitration Act would not be a bar in entertaining an appeal under Clause 15 of the Letters Patent. The contention of the learned Counsel cannot be accepted for more than one reasons. As indicated hereinbefore the Supreme Court in that case was concerned with the interpretation of the word 'Judgment' in Clause 15 of the Letters Patent visa-vis the provisions of Section 104 and Order 43 of the Code of Civil Procedure. It is now well-known that a decision is an authority for what it decides and not what can logically be deduced therefrom."
24. Keeping in view the various decisions that a judgment of a Court should not be read as provision of a statute, it was held that the observations made in paragraph 34 of the Khimji's case is not even an obiter.
25. It was further noticed :--
"It may be noticed that the Supreme Court of India in the case of Upadhaya Hargovind Devshankar v. Dhirendrasinh Virbhadrasinhji Solanki, , while considering as to whether the appeal would lie against the order passed by a single Judge before a Division Bench of the High Court under the Representation of the People Act or not, held that such an appeal would not be maintainable in view of the constitutional provisions as also the provisions of the Representation of the People Act and as such a Letters Patent Appeal should be barred by necessary implication. In R. V. Middlesex Justices, Ex parte Schock, reported in (1965) 2 All ER 68, Queen's Bench Division held that the provisions of the Betting, Gaming and Lotteries Act, 1963 is a self-contained Code dealing with the procedure on appeal against the refusal of a betting licensing committee to grant a betting office licence. In this view of the matter, it must be held that the Arbitration Act, 1940 having laid down as to which orders would be appealable in terms of Sub-section (1) of Section 39 of the Act, no appeal under Clause 15 of the Letters Patent of this Court would lie which does not come within the purview of the Clauses (i) to (vi) thereof."
26. In Masomat Narmada Devi v. Ram Nandan Singh , a Full Bench of the Patna High Court considered the law as it stood before amendment and upon taking into consideration various decisions of the Apex Court as also different High Courts held that in view of the amendment carried out in Section 2(2) of the Code of Civil Procedure, no appeal lies stating (Para 20) :--
"Lastly I am inclined to take the view that the stand taken on behalf of the petitioners would tend to frustrate the very object of the amendment in this context. The very purpose of the deletion of the deeming provision from Section 2(2) of the Code was to make orders passed under Section 47 non-appealable. If the contention raised on behalf of the petitioners were to be accepted, then such orders would still continue to be appealable despite such deletion and the abolition of the legal fiction. It is true that on the argument advanced by the learned Counsel and every order under Section 47 and in particular the purely interlocutory ones may not be appealable, yet, according to him, every such orders, which determines the substantial rights of the parties with regard to all or any of the matters in controversy, would continue to be so. Such a stand would indeed create another hornet's nest as to when an order determines the rights of the parties and whether those rights are to be construed as substantial and further whether all or any of them arise in the suit or the proceeding. It is axiomatic that to the jaundiced eye of cantankerous litigant that every order would fall in such a category. As has been noticed, the evil which the Parliament sought to remedy by the amendment was to prevent the filing of frivolous appeals from orders in execution proceedings even after the parties to the dispute had been through the mill of the suit and its consequent appeals. The construction advocated on behalf of the petitioners would again revive the hierarchy of appeals against order under Section 47 supposedly determining substantial rights of the parties. The larger purpose of the amendment was the expeditious execution of decrees and there is no gainsaying the fact that if appeals are allowed to be carried against orders in execution proceedings itself, the final execution of decree would necessarily be held up. The old age that problems of the litigant in India begin perhaps only after he has secured the decree would again be resuscitated. For all these reasons, I am inclined to the view that the stand taken on behalf of the petitioners herein runs against the very grist of the object and purpose of the amendment."
27. It may be noticed that Section 47 of the Code of Civil Procedure also bars a suit and, thus, any matter which comes within the purview of the said provision can be agitated only in a proceeding thereunder and not by way of a fresh suit. Reference in this connection may be made to Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Nalagarh Dehati Co-operative Transport Society Ltd. v. Suraj Mani .
28. However, in a case where the section does not apply an appeal may be maintainable under Clause 15 of the Letters Patent of this Court.
29. In Mullah's Code of Civil Procedure at page 407 instances have been given as to what would make on an award invalid.
30. In Fajal Ilahi v. R. B. Sabel & Co. reported in AIR 1935 Lahore 549, it has been held that Section 47 pre-supposes that the decree is valid. In the instant case, the award has been held to be valid and the objection filed under Section 30 of the Arbitration Act has been rejected.
31. In Mullah's Code of Civil Procedure, 15th Edn., at page 431, it has been noticed :--
"Before the Amendment Act, 1976 the determination of a question under this section was under Section 2(2) as it then was a decree and as such, unless it was an order under Order 43, Rule 1, subject to an appeal and a second appeal. The omission of the words "Section 47" from the definition of decree in Section 2(2) has now drastically changed the position. An application under this section is not a suit. The order determining it is no longer a decree and is appealable only if it falls under Section 104(1). Sub-section (2) of Section 104 provides that no appeal shall He from any order passed in appeal under this section. Orders passed under this section are not appealable unless they are orders failing under Order 43, Rule 1. A determination, under Order 21, Rule 34, 73, 92 or 106 (1) is appealable under Order 43, Rule 1 read with Section 104(1)(i). Such a determination, when it is between the parties to the suit or their representatives, would fall under this section but would never the less be subject to one appeal, if it is also an order falling under Order 43, Rule 1. As regards appeal therefore, Orders under this section would be (1) orders also falling under Order 43, Rule 1 and (2) orders not falling under Order 43, Rule 1 and therefore not appealable. An order of the executing Court refusing to restore an application by the judgment-debtor dismissed earlier for default amounts to confirmation of sale but since it is not a reference to set aside the sale it is not appealable under Order 43, Rule 1 (u). Disputing from Parshava Properties Ltd. v. A. K. Bose, , the Punjab and Haryana High Court has held that an order under Section 47 is (after 1976) not a decree and not appealable as a decree(ul)".
32. It is, therefore, not correct to contend that an appeal may be maintainable as an order. If decree is valid, and has not been held to be a nullity by reason of lack of inherent jurisdiction by a court of law, the question of the same being an order appealable in terms of Clause 15 of the Letters Patent does not arise. Section 104 of the Code of Civil Procedure in no uncertain terms states that an appeal shall lie only from the orders mentioned therein and from no other order. Thus, an embargo has been created in the matter of preferring of an appeal. When Section 2(2) was not amended, an order under Section 47 by reason of a legal fiction was to be treated as a decree and, thus, an appeal against an order made under Section 47 was maintainable in terms of Section 96 of the Code of Civil Procedure. After the amendment of Section 2(2) of the Code of Civil Procedure no appeal lies under Section 96 of the Act. If an objection filed under Section 47 of the Code of Civil Procedure is stated to be an appealable order coming within the purview of Section 104 of the Code of Civil Procedure, the purpose of the amendment would be frustrated.
33. In Pratap Narain Agarwal v. Ram Narain Agarwal, , a Full Bench of the Allahabad High Court upon taking into consideration the fact that the right of appeal has to be specifically conferred and further the amendment in Section 2(2) of the Code of Civil Procedure held that no appeal is maintainable.
34. Yet again in Challa Ramamurty v. Pasumarti Adinaryana Sons Regd. Firm , a Full Bench of Andhra Pradesh High Court considered the effect of amendment in sub-Section (2) of Section 2 of the Code of Civil Procedure. It was held that basic consideration which prompted the amendment, was to expedite disposal of civil suit and pro-
ceedings so that justice may not be delayed and the intention was to shorten litigation. It held:--
"The Committee's report was accepted and the Bill was introduced in operating the same. This clearly indicates the intention of the Legislature in passing the amending Act namely, to render the decisions under Section 47 as non-decree so that there may not be a further round of litigation by way of appeals. The whole object is to shorten the litigation to enable the decree-holders to enjoy the fruits of the decree. The parties should not have a second round of litigation."
35. We are, of course, aware of a recent decision of the Apex Court in Vanita M. Khanolkar v. Pragna M. Pai reported in AIR 1998 SC 424 wherein it was held that the Letters Patent Appeal under Clause 15 of the Letters Patent of the Bombay High Court against a decree passed under Section 6 of the Specific Relief Act is maintainable stating (para 3):--
"Now it is well settled that any statutory provisions barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would not get excluded unless the statutory enactment concerned expressly excludes appeals under letters patent. No such bar is discernible from Section 6(3) of the Act. It could not be seriously contended by learned Counsel for the respondents that if Clause 15 of the Letters Patent is invoked then the order would be appealable."
36. The said decision appears to have not taken into consideration the earlier decisions of the Apex Court as noticed in the Full Bench decisions of Allahabad High Court, Andhra Pradesh High Court, Patna High Court as also of this Court.
37. Even recently in Municipal Corporation of Bombay v. State Bank of India , the Apex Court while considering the provision of Section 218D (1) of the Bombay Municipal Corporation Act held that as thereunder no further appeal is provided against the judgment of the learned single Judge of the High Court who decided the second appeal under Section 200D of the Act against the appellate order of the Chief Judge of the Small Causes Court passed under Section 217(1) of the Act and as Section 100A of the CPC which was intro-
duced by the Amendment Act specifically bars any further appeal, no Letters Patent appeal would be maintainable.
38. As indicated hereinbefore Section 104 of the Code of Civil Procedure also expressly bars another appeal. In any event, so far as a suit filed in the Original Side of the High Court is concerned, the same are to be governed by the provision of the Code of Civil Procedure unless any provision to the contrary has been made under the Rules. As regard filing of an appeal from an order passed under Section 47 of the Code of Civil Procedure, no such provision has been made.
39. In Shah Babulal Khimji v. Jayaben D. Kania whereupon strong reliance has been placed by Mr. Tebriwal, a three Judge Bench has categorically held that Section 104 of the Code of Civil Procedure applies to the Original Side of the High Court and an order refusing to grant an interim order would be appealable under Order 43 Rule 1 of the Code of Civil Procedure. It was in that situation held by the Apex Court that an order refusing to grant injunction would be a judgment. Fazal Ali, and Varadarajan, JJ. clearly held that the concept of the Letters Patent governing only the internal appeals in the High Courts and the Code of Civil Procedure having no application to such appeals is based on a serious misconception of the legal position. There is no non obstante clause in the provisions of the Letters Patent to indicate that the provisions of Code of Civil Procedure would not so apply either expressly or by necessary intendment. It was in that situation the Letters Patent Appeal was held to be maintainable. On the same parity of reasonings in the instant case. Letters Patent Appeal would not be maintainable.
40. In Indrajmal Shyamsukha v. Bhagat Singh Dugar reported in 1991 (2) Cal LJ 321, a Division Bench of this Court has held that if the decree on the award is a nullity, only in that event an appeal will be maintainable. The said judgment evidently has been rendered as indicated hereinbefore on the supposition that an objection under Section 47 pre-supposes existence of a valid decree. To the same effect is the judgment in Union of India v. Jagat Ram Trehan & Sons .
41. In that view of the matter no appeal lies from that part of the order passed by the learned trial Judge which is confined to the objection filed by the appellant in terms of Section 47 of the Code of Civil Procedure. It must, therefore, be held that part of the judgment under appeal whereby and whereunder, it has been held that paragraphs 1 & 2 of the award are executable without complying with the condition laid down under paragraph 3 thereunder is not appealable. In other words the judgment under appeal to the effect that the award is indivisible one that the said decree, unless the other respondents fulfil their part of obligations under the award viz. delivery of possession the properties belonging to the partnership, would come within the purview of Section 47 of the Code of Civil Procedure and, thus, would not be appealable one. Even if an appeal lies, we do not find any fault with the reasonings of the learned trial Judge, simply on the ground that the very fact that money in terms of paragraphs 1 & 2 is payable not only in favour of or by the persons who are to deliver assets in respect of the partnership business but also to three other who have nothing to do therewith, it cannot be held that paragraphs 1 & 2 is dependent upon fulfilment of supposed pre-conditions laid down in paragraph 3 of the Award.
42. The parties before this Court who are 72 in number, can be divided in several groups viz. Mongturam Jaipuria Group, Sitaram Jaypuria Group, Rajaram Jaipuria Group. Sitaram and Rajaram are not the partners of Anandram Gajadhar. Schedules 1 & 2 of the award directs payments by Mungturam Group including the ladies and various persons in the other Group.
43. In terms of 1st schedule and the 2nd schedule of the award, specified amounts are payable by the appellants to various respondents including the respondents No. 31, 32, 51 to 53, 57 to 59, 61 to 64 and 66 and 67 in the following manner:--
AS PER FIRST SCHEDULE OF THE AWARD Respdt. No.
1.
Shilvanti Devi Jaipuria 51 Rs. 1,92,235.00 p.
2. Nandlal Jaipuria 52 Rs. 5,09,701.00 p.
3.
Damodarlal Jaipuria (deceased) 31 & 32 Rs. 58,629.00 p. 4. Babulal Jaipuria 57 Rs. 1,85,314.00 p. 5. Bhagwati Devi Jaipuria 31 Rs. 21,166.00 p. 6. Ramlal Jaipuria 59 Rs. 92,562.00 p. 7. Nirmala Devi Jaipuria 61 Rs. 29,037.00 p. 8. Bimla Devi Jaipuria 58 Rs. 18,591.00 p. Rs. 11,07,235.00 p. AS PER SECOND SCHEDULE OF THE AWARD Respdt. No. 1. Shilvanti Devi Jaipuria 51 2. Promila Kumari 66 3. Nirmala Kumari 67 4. Nandlal Jaipuria 52 5. Sarala Kumari 53 6. Damodarlal Jaipuria (deceased) 31 & 32 Rs. 37,03,000.00 p. (Legal heirs) 7. Ramalal Jaipuria 59 8. Babulal Jaipuria 57 9. Kalawati Bhawalka 64 10. Sushila Ganeriwalla 63 11. Urmila Ganeriwalla 62 Total First & Second Schedule : Rs. 48,10,235.00 p.
44. Such amount also carried interest at the rate of 71/2% from the date of decree i.e. 25-5-1967.
45. It will not, therefore, be correct to contend that the decree is a composite one. However, while deciding the question as to the executability of the decree in respect of paragraphs 1 & 2 of the award at the instance of the respondent No. 1 herein the learned trial Judge had no jurisdiction to decide the question as regards executability of paragraph 3 of the award. The said question could have been decided only in an objection, if any, filed by judgment-debtors in the execution can filed by the appellant. Such part of the order being without jurisdiction, an appeal there against would be maintainable.
46. For the purpose of deciding the said question it has to be borne in mind that the reference to the arbitrator related to partnership and ancestral properties. Not only the dissolution of various partnership firms were the subject matter of reference but the disputes and difference in truth and substance related to partition of a joint family property. In a decree passed in a Partition Suit, each party is the decree-holder. Such an award or a decree must be construed as a whole and effect thereto should be given to every part thereof so that the award may be upheld.
47. A decree must not be construed in a pedantic manner. It's tenor must be taken into consideration.
48. In construing the award, paragraph 3 of the award should be read as a whole. Unless, rights in respect of the properties are conferred upon the Appellants, the question of imposition of the obligations in respect thereof would not assign. Rights and obligation in respect of the properties must be conferred/imposed simulta-
neously. An obligation cannot be imposed without allowing the appellants to enjoy the fruits of the Award properties.
49. In Prakash Chand Khurana v. Harnam Singh , the Apex Court while construing an Award held :--
"Clause 7 of the award on which the appellants' counsel relies in support of this argument provides that if the appellants committed default in payment of the amount, the respondents "shall be entitled to take back the possession". This term, torn from the rest of the award, may lend plausibility to the appellants' contention but for a true construction of that term, one must have regard to the entire scheme of the award".
50. As regards the contention that the award was declaratory in nature, the Apex Court held that the consequences provided in Clause 7 of the award does not make the same merely declaratory. It opined :--
"It is never a pre-condition of the executability of a decree that it must provide expressly that the party entitled to a relief under it must file an execution application for obtaining that relief. The tenor of the award shows that the arbitrator did not intend merely to declare the rights of the parties. It is a clear intendment of the award that if the appellants defaulted in discharging their obligating under the award, the respondents would be entitled to apply for and obtain possession of the property".
51. In Gujarat Water Supply & Sewerage Beard v. Unique Erectors (Gujarat) (P) Ltd. , the award was not found to be indefinite. As regard reasonableness of the award, the learned judges observed :--
"Reason varies in its conclusions according to the idiosyncrasy of the individual and the times and the circumstances in which he thinks. The word 'reasonable' has in law prima facie meaning of reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know".
52. In Ct. A. Ct. Nachiappa Chettiar v. Ct. A. Ct. Subramaniam Chettiar , the law is stated in the following terms ;--
"In appreciating the effect of the words used in the award we must bear in mind that the arbitrators were laymen not familiar with the technical significance of legal expressions, and so we must read the relevant clauses as a whole with a view to determine what in effect and substance they intended to decide".
53. In Abdul Rahiman v. M. L. Narasimhiah reported in AIR 1950 Mysore 60, it is stated (Para 9):-
"The second point raised in this appeal is that whatever might be the right of a plaintiff to claim a share in the profits of the property directly to be divided that cannot be the case of defendant. Defendant 2 in this case is entitled to half a share in the property in dispute in the possession of the appellant. The policy of law recognised as early as 1873 in Khoorshed Hossein v. Nubbee Fatima, (1877-78) ILR 3 Cal 552 : 2 Cal LR 187 which lays down :
That a decree for a partition amounts to a joint declaration of the rights of the persons interested in the property of which partition is sought and that it must be taken that a decree in such suits is a decree, when property drawn up in favour of each shareholder or set of shareholders having a distinct share is accepted in 50 May HCR 46. There can therefore be no distinction between the case of a plaintiff and that of a defendant entitled to a share".
54. In Raja Sasi Sekhareshwar Roy Bahadur v. Lalit Mohan Mitra , it was held by the Privy Council that the suit to enforce an award was not maintainable.
55. Furthermore, the question as regard validity of the award has been upheld by a Division Bench of this Court. The said decision is reported in (1992) 96 Cal WN 1. Thus, the award having been held to be valid it does not lie in the mouth of the parties to contend otherwise in this proceeding. This Court can not shut its eyes to the fact that by reason of paragraph 3 of the award it has been held that the assets of the partnership firm which belong absolutely to Mungturam Group and Banwarilal Group will get money from Mungturam Group. It is, therefore, an award which can be executed by both the parties. It is, thus, preposterous to suggest that one part of the award can be executed whereas other part cannot be. Such a construction given to the award would render the entire award nullity. The Court must raise a presumption that a decree passed by a Court of law pursuant to an award made by an arbitrator is valid. A decree, also carries with it, a presumption that the same is just and reasonable.
56. Furthermore, it has to be borne in mind that the award has been made by a commercial man. He had no legal training and, thus, such an award has to be construed liberally.
57. In Commercial Arbitration, Second Edition by Mustill & Boyd at page 569, it is stated:--
"Just as the Courts have shown themselves increasingly willing to accommodate procedural discrepancies when there is no resulting injustice, so also have they adopted a more benevolent attitude to the interpretation of arbitral awards and particularly to those made by commercial men.
Thus, an award will be construed liberally and in accordance with the dictates of commonsense, and as far as possible in accordance with the real intention of the arbitrator. The Court will not go out of its way to find uncertainty or error in the award merely because the arbitrator has not expressed his conclusions in the correct legal language. Furthermore, not only will the Court not be astute to look for defects, but in case of uncertainty it will so far as possible construe the award in such away as to make it valid rather than invalid. Thus, if it is alleged that an award is subject to error on the face, but the award contains insufficient facts to enable the Court to tell whether arbitrator's conclusion of law was justified or not, it will assume that any justifying facts which could exist did exist, even though the arbitrator has not fpund them. This process cannot, however, be carried too far. The Court is not concerned with fanciful hypotheses in order to support awards. It must have regard to probabilities, and not to flights of fancy".
(Underlining is mine for emphasis)
58. The award if construed in the manner as has been done by the learned trial Judge would make the same ambiguous or uncertain and, thus, an attempt should be made to avoid such construction. Whether the award was uncertain or ambiguous could have only fallen for decision by the Division Bench while considering the objection filed by the parties under Sections 30 and 33 of the Arbitration Act but in the said proceeding it had been found to be a valid award and, thus, when an execution case is filed, the Court must proceed with the presumption that the same is enforceable. It is not the case that by reason of award determination of matters had been made which did not comprise in agreement of reference.
59. In Selby v. Whitbread & Co. reported in (1917) 1 KB 736 at 748 it has been held that me Court should approach an award with a desire to support rather than destroy it and presumes, unless and until the contrary is shown, that the arbitrator or umpire has by his award determined those matters and those matters only, which were referred to him. See also Halsbury's Laws of England, Fourth Edition, paragraph 610.
60. In any event, reasonable construction be always made in support of a decree and the Court always should also construe the same in a manner which renders a decree executable.
61. In Taraprasanna Ganguly v. Naresh Chandra Chakrabarty , it is stated :--
"The decree might have been more explicit but a reasonable construction must always be put on a decree and the court should always lean against a construction which would render a decree inexecutable".
62. In Manvikrama Raja v. Thattamangalath , it was opined :--
"To ascertain the meaning and effect of a decree of any Court, it is permissible, where the words are capable of more than one meaning, to look at all relevant papers and circumstances which were before the Court and the objects which the directions contained in the decree were aimed to achieve. Of two possible constructions, the Court will not accept the one which leads to plain injustice and makes its own decree an instrument of depriving parties, whose case had not been heard and decided of valuable and cherished rights which no one had any intention to destroy."
63. It will not be correct to contend that there cannot be any declaratory award at all on the ground that the power to grant a declaratory decree had been conferred upon a Court specifically under Section 34 of the Specific Relief Act, 1963 inasmuch as there may be cases where an award may be declaratory in nature. The Court shall not however begin with a presumption that keeping in view the nature of the disputes and differences between the parties which had been referred to the arbitrator for its determination to the effect that instead and place of dividing the joint family properties the Arbitrator had chosen to pass only a declaratory award.
64. Paragraph 3 of the award itself requires interpretation. Although the said paragraph begins with the words 'I declare' but the same by itself does not mean that the award is declaratory in nature. By reason of the award a declaration had been made that all the assets of the firm of M/s. Anandram Gajadhar, all its branches shall belong to Mangturam Jaypuria. Sitaram Jaipuria and Rajaram Jaipuria absolutely. Does the word 'shall belong' and that too suffixed by the word 'absolutely' would only mean a declaration of title? The answer to the said question, in the considered opinion of this Court, should be rendered in negative.
65. In Raja Mohammad Amir Ahmed Khan v. Municipal Board of Sitapur , it is stated (Para 14) :--
"Now to revert to paragraphs 2, 5 & 8 which the learned Judges considered amounted to a clear and unequivocal denial of the Governments title, they referred in para 2 to the words belonging to me as constituting a disclaimer of the tenancy and a repudiation of the landlord's title. We do not agree that this is the only or proper construction which the words are capable of bearing. Though the word belonging no doubt is capable of denoting an absolute title, is nevertheless not confined to connoting that sense. Even possession of an interest less than that of full ownership could be signified by that word. In Webster belong to is explained as meaning inter alia to be owned by, be the possession of. The precise sense which the word was meant to convey can therefore be gathered only by reading the document as a whole and adverting to the context in which it occurs".
66. In Nawab Sir Mir Osman Ali Khan v. Commr. of Wealth-tax, Hyderabad , the Apex Court had referred to the dictionary meaning of the word 'own' and held that the word 'belonging to' would include to be owned by and be in possession of. Thus, the declaration to the effect that the property shall belong to absolutely, would clearly mean that not only beneficiary therein would have a title in respect thereof but shall also be entitled to possession thereof. The word 'absolutely' means 'exclusive'. Furthermore, thequestion, is whether they can be made certain. For the said purpose one has to bear in mind that identification of the properties would not be difficult as by reason of the entire assets in respect of the partnership firm and their branches had been allotted to the appellants. Such assets of the partnership allotted to the appellants being immoveable properties, can be found out from various documents, if any question is raised in relation thereto. Even where an award is uncertain for the purpose of interpretation thereof even the pleadings of the parties can be taken into consideration with a view of ascertain'as regard the nature of dispute between the parties.
67. Furthermore, when possession can be delivered in terms of an award the same cannot be said to be a declaratory decree and, thus, executable.
68. There cannot be any doubt whatsoever that pure declaratory award or decree is not executable as has been held by the Apex Court in State of Punjab v. Krishan Dayal Sharma , State of Punjab v. Buta Singh reported in 1995 Suppl. (3) SCC 684, Rajasthan SRTC v. Ladulal Mali an in State of Madhya Pradesh v. Mangilal Sharma but the said decisions have been rendered on the peculiar facts situation obtaining in the said decision.
69. Each award and/or decree has to be construed on its own keeping in view the facts and circumstances of the case. In the event, a contention is raised as has been done in the instant case that the decree is uncertain, the Court for the purpose of construing a decree cannot only go behind the same, (although ordinarily it cannot do so) and look to the pleadings and other materials of the parties so as to arrive at a finding as to the nature of disputes between the parties, their respective claims and the determination made thereon by the arbitrator in its award. An award is referable to the claims as also disputes and differences before the parties the Court, therefore, with a view to construe a decree/award can even refer to the pleadings of the parties for the purpose of its true construction.
70. In Nagindas Ramdas v. Dalapatram Ichharam it has been held (Para 29 of AIR) :--
"Be that as it may, in cases where an objection as to the non-executability of the decree on the ground of its being a nullity, is taken, the executing Court is not competent to go behind the decree, if the decree on the face of it, discloses some material on the basis of which the Rent Court could be satisfied with regard to the existence of a statutory ground for eviction. In such a case it must accept and execute the decree as it stands. If, on the face of it, the decree does not show the existence of such material or jurisdictional fact, the executing Court may look to the original record of the trial Court to ascertain whether there was any material furnishing a foundation of the trial Courts jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed, its task is complete".
71. In the instant case the decree passed on the basis of award is not said to be inexecutable on the ground that it is a nullity.
72. A Court of law is not to pass an order on the basis of more technicalities. The technicalities of the law have their own say but the Court must be allowed to have their own say. In the ultimate result of the Us.
73. It has also to be borne in mind as has been said by U.C. Banerjee, J. (as His Lordship then was) speaking for the Division Bench in Tantia Construction Co. Ltd. v. Union of India reported in 1998(1 )Cal HN 344:--
"This, however, cannot be the due process of law. Law Court exists not to make a mockery of law but to give effect to the due process of law, so that justice is meted out to a concerned party seeking a judicial redress. Technicality alone cannot possibly outweigh the course of justice and it is the concept of justice which ought and is the predominant factor in so far as the Law Court is concerned."
74. It is true that in Santlal v. Ramaya Ram reported in AIR 1938 Lahore 177, Tek Chand, J. has held that despite bar of a suit under Section 32 of the Arbitration Act, a suit is maintainable. With utmost respect to the learned Judge the said decision does not appear to have laid down the correct legal position particularly in view of the decision of the Privy Council In Sasi Sekhareshwar Roy v. Lalit Mohan Maitra . For the self-same reason, no reliance can be placed on Kailashpati Singhania v. Ram Gopal Gupta .
75. It is true that the appellants had made prayer in their objection under Section 47 of the CPC which do not come within the purview of the said provision but such objections could not have been gone into by the learned trial Judge. Mr. Mitra has contended that the appellants themselves having invited the Ld. Trial Judge to go into all such questions they are estopped and precluded from doing so.
76. In ordinary circumstances the Court could have held the same but as indicated hereinbefore the very basis of the judgment of the learned trial Judgment viz. construction of paragraph 3 of the award having been found to be unsustainable in law. It is not for this Court at this stage to consider the objections which might be raised by the respondents herein as regard executability of the decrees passed in their favour.
77. It is, therefore, held :
1. The application for execution filed by the respondent No. 1 was maintainable and the objection under Section 47 filed by the Appellants herein to that effect was not sustainable in law and the judgment of the learned trial Judge must be upheld and furthermore no appeal lies thereagainst;
2. But that part of the judgment of the learned trial Judge whereby it has been held that paragraph 3 of the award is declaratory in nature and, thus, non-executable; was beyond the scope of the objection filed by the appellants under Section 47 of the CPC and, thus, the appeal is maintainable against that part of the order under appeal.
3. The finding of the learned trial Judge of the effect that paragraph 3 of the award is not executable cannot be sustained and, thus, the order and judgment to the said effect is set aside.
4. It is made clear that all the execution proceedings shall proceed in accordance with law and it would be open to other parties to raise their respective contentions in the execution proceeding and in the event any occasion arises therefor the bench concerned may proceed to hold trial on evidence.
78. An interlocutory application has been filed on behalf of the appellants. Keeping in view our aforementioned conclusion in our opinion, it is not necessary to pass any order thereupon. It will be open to the appellants or any other parties to file appropriate application before the learned trial Judge and the same may be considered and dealt with on their respective merits.
79. The appeal and the application are disposed of accordingly.
80. In the facts and circumstances of the case, there will be no order as to costs.
S.N. Bhattacharjee, J.
81. I agree