Authored By : Ernest Edward Fletcher, Syed Shamsul Huda

Ernest Edward Fletcher, J.

1. This is an appeal by the plaintiff against the judgmentof the learned Subordinate Judge of Dacca, dated the 23rd April 1915, modifyingthe decision of the Munsif of the same place. The plaintiff brought the suit torecover possession of a plot of land on the ground that the pro formadefendants who were his burgadars had been dispossessed by the defendant No. 2and the defendants Nos. 1 and 3 to 7 all acting together. One defendant only,namely, the defendant No. 2 contested the suit, and, therefore, it seems tohave been assumed that under the terms of the Civil Procedure Code theplaintiff and the defendant No. 2--were the only parties who were interested inthe matter and accordingly those two parties--the plaintiff and the defendantNo. 2 agreed to refer the matter to arbitration. The arbitrators had made theiraward. The award was presented to the Court and no objection within the timeallowed by the Indian Limitation Act was preferred against the award so made.The case then came on for final disposal before the learned Munsif and thelearned Munsif--whether it was noticed by the parties before or not I do notknow and it does not matter--proceeded in this way: First of all, he recordedevidence as against the non-appearing defendants and then he decreed the suitin the terms following. The suit be decreed in accordance with the award of thearbitrators in so far as it relates to the plaintiffs title to the land, thatthe plaintiffs title to the land be declared and that he do recover possessionof the disputed land as against the defendants. It is quite clear that it was agood order which all the defendants were bound to obey, namely, to deliverpossession of the land to the plaintiff in accordance with the judgment of thelearned Munsif. Thereupon the defendant No. 2 alone preferred an appeal to thelearned Subordinate Judge. The learned Subordinate Judge dismissed the appealof the defendant No. 2, but set aside the judgment of the learned Munsif so faras it related to the non-contesting defendants who had not joined in the appealto the learned Subordinate Judge. Now, we have an appeal and a cross-objection.

2. The cross-objection was preferred by the defendant No. 2,who was one of the parties who went to arbitration. His case can be veryshortly disposed of. He lodged no objection against the award made by thearbitrators and, in accordance with Section 16 of the Second Schedule to theCode of Civil Procedure, the Court passed a decree. It is not suggested thatthe decree so made is in excess of the award, nor it is suggested that it isnot in accordance with the award. The provisions of the existing Code of CivilProcedure clearly prohibit questions as to the validity of the decree after ithas been passed, except in cases where the decree is in excess of or is not inaccordance with the award. That being so, whatever may be ones own views withregard to the order of reference made in the suit between the plaintiff and thedefendant No. 2, it is much too late now to question the validity of the decreepassed on the award. The cross-objection of the defendant No. 2 mustaccordingly be refused.

3. The appeal of the plaintiff may also be disposed of in anequally short way. The non-contesting defendants were directed by the learnedJudge of the primary Court to deliver over possession of the land to theplaintiff. They preferred no appeal against that order and it was not competentto the learned Judge of the lower Appellate Court in the appeal to which thenon-contesting defendants were not parties to vary the decree of the firstCourt in the manner he did as regards them. It is suggested that he had powerunder Order XLI, Rule 33, Civil Procedure Code. That obviously is not so. Thatsection does not apply to a person who was not a party to the appeal. Thesenon-contesting defendants were not parties to the litigation in the lower AppellateCourt. Obviously, on first principles, the learned Judge in that Court couldnot vary the decree of the Court of first instance as regards their rights andliabilities as adjudicated on by that Court. The appeal must, therefore, beallowed to this extent that the decree of the lower Appellate Court, in so faras it concerns the defendants Nos. 1 and 3 to 7, must be set aside and thedecree of the Court of first instance as regards them will be restored. Theappellant will be entitled to realize his costs in this appeal from thedefendants Nos. 1 and 3 to 7. The appeal as against the defendant No. 2 will bedismissed. The defendant No. 2s costs in the appeal and the plaintiffs costsin the cross-objection will be set off one against the other and neither ofthese two parties will be entitled to claim anything against the other.

Syed Shamsul Huda, J.

4. I agree.

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Haridas Dey vs.Kailash Chandra Bose and Ors.(30.01.1918 - CALHC)