Appeals Nos
421 to 423 of 1957
Appeals from the judgment and order dated February 18 1955 of the Allahabad High Court Lucknow Bench at Lucknow in FAFO Nos
11 to 13 of 1953
J B Dadachanji for the appellant
C B Agarwala and C P Lal for the respondent
February 6
The Judgment of the Court was delivered by SHAH J
These three appeals were filed by the appellants Ms Jethanand  Sons with certificate of fitness granted under article 1331 c of the Constitution by the High Court of Judicature at Allahabad
The appellants entered into three separate contracts with the Government of the United Provinces now called the State of Uttar Pradesh on March 20 1947 May 27 1947 and June 28 1947 for the supply of stone ballast at Shankar Garh District Allahabad
The contracts which were in identical terms contained the following arbitration clause 97 756  All disputes between the parties hereto arising out of this contract whether during its continuance or after its rescission or in respect of the construction or meaning of any clause thereof or of the tender specifications and conditions or any of them or any part thereof respectively or anything arising out of or incident thereto for the decision of which no express provision has hereinbefore been made shall be referred to the Superintending Engineer of the Circle concerned and his decision shall in all cases and at all times be final binding and con clusive between the parties Pursuant to the contracts the appellants supplied stone ballast
Thereafter purporting to act under cl
16 of the agreements the Executive Engineer Provincial Division referred certain disputes between the appellants and the State of Uttar Pradesh alleged to arise out of the performance of the contracts to arbitration of the Superintending Engineer of the Circle concerned
The Superintending Engineer required the appellants to appear before him at the time fixed in the notices
The appellants by their letter dated May 31 1951 declined to submit to the jurisdiction of the Superintending Engineer and informed him that if he hears and determines the cases ex parte the  decisions will not be binding  on them
On February 7 1953 the Superintending Engineer made and published three awards in respect of the disputes arising under the three contracts and filed the same in the court of the Civil Judge Lucknow
The appellants applied for setting aside the awards alleging that the contracts were fully performed and that the dispute alleged by the State of Uttar Pradesh to have arisen out of the contracts could not arise after the contracts were fully performed and that the State could not refer those alleged disputes to arbitration
They also contended that the awards were not valid in law because on the arbitration agreements action was not taken under section 20 of the Arbitration Act
The Civil Judge Lucknow held that the disputes between the parties were properly referred to the Superintending Engineer by the State of Uttar 757 Pradesh and that the awards were validly made
Against the orders passed by the Civil Judge Lucknow three appeals were preferred by the appellants to the High Court of Judicature at Allahabad
The High Court set aside the orders passed by the Civil Judge and remanded the cases to the Trial Judge with a direction that he do allow the appellants and if need be the respondent to amend their pleadings and frame all issues that arise out of the pleadings and allow the parties an opportunity to place such evidence as they desire and decide the case on such evidence
In the view of the High Court no proper notice of the filing of the awards was served upon the appellants and that they were  seriously handicapped in their reply by the course which had been adopted both by the court and the arbitrator in the conduct of the proceedings in court
 On the applications filed by the appellants the High Court granted leave to appeal to this court under article 1331c of the Constitution certifying that the cases were fit for appeal to this court
Counsel for the respondent has urged that the High Court was incompetent to grant certificate under article 1331 c of the Constitution
The order passed by the High Court was manifestly passed in exercise of the inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court
Under article 133 of the Constitution an appeal lies to this court from any judgment decree original order in a civil proceeding of a High Court if the High Court certifies that  a  b  or cthe case is a fit one for appeal to the Supreme Court
 In our view the order remanding the cases under section 151 of the Civil Procedure Code is not a judgment decree or final order within the meaning of article 133 of the Constitution
By its order the High Court did not decide any question relating to the rights of the parties to the dispute
The High Court merely 758 remanded the cases for retrial holding that there was no proper trial of the petitions filed by the appellants for setting aside the awards
Such an order remanding the cases for retrial is not a final order within the meaning of article 1331c
An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding
If after the order the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined the order is not a final order within the meaning of article 133
The High Court assumed that a certificate of fitness to appeal to this court may be issued under section 1091c of the Code of Civil Procedure even if the order is not final and in support of that view they relied upon the judgment of the Judicial Committee of the Privy Council in V M Abdul Rahman vs D K Cassim  Sons 1
But section 109 of the Code is now made expressly subject to Ch
IV Part V of the Constitution and article 133 1 c which occurs in that chapter authorises the grant of a certificate by the High Court only if the order is a final order
The inconsistency between section 109 Civil Procedure Code and article 133 of the Constitution has now been removed by the Code of Civil Procedure Amendment Act 66 of 1955
But even before the amending Act the power under section 1091 c being expressly made subject to the Constitution an appeal lay to this Court only against judgments decrees and final orders
Again the orders passed by the High Court did not raise any question of great public or private importance
In the view of the High Court the applications forgetting aside the awards filed by the appellants were not properly tried and therefore the cases deserved to be remanded to the court of first instance for trial de novo
The High Court granted leave to the parties to amend their pleadings they also directed the Civil Judge to frame  all the issues that arise and allow the parties an opportunity of adducing such evidence as they desired
 It was an order for trial de novo on fresh pleadings and on all issues that may 11933 LR 60 IA 76
759 arise on the pleadings
Evidently any decision given by the High Court in the course of the order would not in that trial de novo be binding and the cases will have to be tried afresh by the Civil Judge
The High Court was of the view that the interpretation of para
3 of the first schedule of the Indian Arbitration Act raised a substantial question of law
But by the direction of the High Court this question was also left open to be tried before the Civil Judge
We fail to appreciate how an observation on a question which is directed to be retried can still be regarded as raising a question of law of great public or private importance justifying grant of a certificate under article 133 1 c of the Constitution
We accordingly vacate the certificate granted by the High Court and dismiss these appeals with costs
One hearing fee
Appeals dismissed


Summary:
The parties were members of a joint Hindu family possessed of considerable property movable and immovable
They volun tarily appointed Panchas to determine the shares of the parties and to divide the property
The Panchas first determined the shares of the parties and reduced the determination to writing
It was accepted by the parties and was signed by all of them and the Panchas
Thereafter on various dates the Panchas divided several items of movable and immovable properties and the parties entered into possession of their shares
These divisions were duly entered in the  partition books  and were signed by the parties and the Panchas
The Panchas were unable to divide the remaining properties and with the consent of the parties they appointed one G to divide them
G divided some of the properties but he too was unable to divide the remaining properties
One of the parties served a notice cancelling the authority of the Panchas and filed a suit for partition of the remaining properties
Upon an application made by the plaintiff for revoking the reference the Trial Court cancelled the arbitration as one of the Panchas was unwilling to proceed with the division
Another party filed a suit for partition of all the properties contending that the division made by the Panchas was not binding as the award had not been made a rule of the court and the reference had been revoked and as the award was not registered
Held that the divisions already made by the Panchas were binding on the parties and only the remaining properties were liable to be partitioned
By the reference to the Panchas the 793 parties ceased to be members of the joint Hindu family
Thereafter by the division of the family assets which was accepted by the parties and by the taking into possession of their shares by the parties the properties came under the individual ownerships of the parties to whom they were allotted and in respect of the remaining properties they became tenants in common
The proceedings taken by the Panchas were not revoked by the order of the trial Court revoking the reference as they had been accepted and acted upon by the parties
Where an award made in arbitration out of court is voluntarily accepted and acted upon by the parties and a suit is thereafter filed by one of the parties ignoring the acts done in pursuance of the acceptance of the award the defence that the suit is not maintainable is not founded on the plea that there is an award which bars the suit but that the parties have by mutual agreement settled the dispute and that the agreement and the subsequent actings of the parties are binding
Such a plea is not barred by section 32 of the Arbitration Act
The records made by the Panchas were documents which merely acknowledged partitions already made and were not required to be registered