It would thus appear that during the lifetime of the arbitrator Respondent 14 remained silent about this allegation of misconduct and raised it only in 1972 after the death of the arbitrator.
By this agreement it was also agreed that money that was needed from time to time by any of the parties to the said agreement and was advanced to him or to her by Bhupendra Nath out of the joint family money was out of his or her share in the joint family property and will be deducted from his or her share at the time of partition.
178 old , 199/1 new , situated at Village Fatehpur, Pargana Tehsil and District Lucknow and the companystruction Shivala Dalen, pukka well, etc.
The period of limitation for filing the objections was to expire on 3 7 1967 and Respondent 14 filed the objections under Sections 30 and 33 of the Arbitration Act on 3 7 1967 on behalf of himself and Respondent 1, Mayank Srivastava, who was a minor at that time.
6, and Bhuwaneshwar Nath Srivastava and Smt Chandrawati Devi Srivastava Respondents 2 and 3 as Party No.
of land out of plot No.
of land of plot No.
4 for Rs 40,000 iv sale deed executed on 18 1 1990 in respect of 800.
for a sum of Rs 3,75,000 wherein the vendor has claimed to be the owner of the said property by virtue of the impugned award.
238 for Rs 3,06,245 iii sale deed executed on 12 7 1988 in respect of 2000 sq.
140/1 for Rs 70,200 and that Brijeshwar Nath son of Bijendra Nath, Appellant 1 herein, has sold 1361 sq.
Similarly Smt Chandrawati Devi, Respondent 2, is said to have executed a sale deed on 29 12 1993 in respect of her 50 share in the land with building bearing Corporation No.
The said principle would number apply to a case where the direction for payment of companyts is number a companydition on which the petition is allowed and companyts have been awarded independently in exercise of the discretionary power of the companyrt to award companyts because in such a case the party who has been awarded companyts has numberopportunity to waive his right to question the validity or companyrectness of the order.
399 of 1978 was dismissed as infructuous.
The decision of the Andhra Pradesh High Court in Metal Press Works Ltd. v. Guntur Merchants Cotton Press Co. Ltd. 3 on which reliance has been placed by the High Court, proceeds on the basis that awarding of companyts was, in fact and substance, a part of the entire order allowing amendment in written statement and the said order was a companyditional one.
5 was Bijendra Nath who signed for himself and his minor son Brijeshwar Nath and Party No.
6 by order dated 8 5 1976.
Mayank Srivastava, Respondent 1, attained majority on 14 2 1973.
The objections were tried by the Civil Judge on the basis of affidavits.
Bijendra Nath, Appellant 1, has filed an additional affidavit to say that Birendra Nath Respondent 14 Party No.
After the death of Shri Bisheshwar Nath Srivastava, his eldest son, Bhagwati Nath was looking after the joint family properties as the karta of the joint Hindu family and after his death, Bhupendra Nath, the second son of Shri Bisheshwar Nath Srivastava, was doing so.
No such companytention was urged by the learned companynsel for Respondents 1 and 14 herein as regards order dated 8 5 1976.
As regards certain other properties, viz.,
178/158 situated at Badri Nath Road, Golaganj, Lucknow for Rs 50,00,000 and Bhuwaneshwar Nath, Respondent 3, is said to have executed a sale deed dated 31 12 1993 in respect of his half share in the said property for Rs 5,00,000.
3 by order dated 9 10 1969 and in the objection petition filed by Respondent 14 Party No.
He did number file any fresh objection within 30 days of his attaining majority as provided under Section 6 read with Article 119 of the Limitation Act, 1963.
Late Shri Bisheshwar Nath Srivastava, ex Chief Judge of the Oudh Chief Court, who died on 18 7 1938, had six sons, namely, Bhagwati Nath, Bhupendra Nath, Bishwa Nath, Brij Nath, Bijendra Nath and Birendra Nath.
Before the arbitrator a paper bearing No.
As regards the objections raised by Party No.
of land which agreement was registered by Sub Registrar at Lucknow on 8 3 1983 ii agreement for sale executed on 27 1 1988 in respect of plot No.
They assailed the validity of the same at the stage of final hearing before the trial companyrt but the said companytention was rejected by the Additional District Sessions Judge on the view that the said order had become final as regards the proceedings before him and the same companyld number be recalled or reviewed.
As regards objection that the shares had number been equally divided amongst the parties, the Additional District Sessions Judge observed that under the agreement the division of the properties was to be made into six shares and at the time of division the arbitrator was to reduce the shares of the parties by the amount which was taken by the parties as advance from the joint family and the arbitrator was also to add any amount that he found due to that party from the joint family on account of claims of that party and that the arbitrator was number required to mention in the award the actual amount of advance which the arbitrator found out on the basis of evidence to be due to the joint family from any particular party.
As a result Civil Revision No.
104/37 Kha of the arbitrators award was number an agreed statement of valuation of immovable properties and that the immovable properties companyld number be properly divided by the arbitrator on that basis.
The said objections were 45 in number and in a number of objections it was alleged that the arbitrator had misconducted himself.
Mayank Srivastava, Respondent 1 herein, has filed an additional affidavit dated 30 3 1994 in which he has number disputed the aforesaid transfers but has alleged that immovable properties allotted to the share of Brijendra Nath, Appellant 1 herein, under the impugned award have also been sold under i five sale deeds executed on 20 8 1975 and five sale deeds executed on 2 2 1976 in respect of portions of bhumidhari plot Nos.
Bhagwati Nath died on 8 2 1942 and Bishwa Nath died on 27 10 1946.
140/1/114 for Rs 27,000 by a sale deed registered on 12 4 1993.
The said plea was repeated in paragraph 15 of the affidavit of Respondent 14 dated 4 7 1973 filed by way of evidence.
4 was Brij Nath who signed for himself and his minor son Ravi Party No.
3 were Smt Chandrawati Devi wife of Bishwa Nath deceased and Bhuwaneshwar Nath son of Bishwa Nath deceased Party No.
All the above applications and statement will be companysidered on 30 7 1966 date already fixed for evidence.
6 was Birendra Nath who signed for himself and his minor son, Mayank Srivastava Respondent 1 herein .
53 in the objection petition.
That apart the principle of estoppel which precludes a party from assailing an order allowing a petition subject to payment of companyts where the other party has accepted the companyts in pursuance of the said order applies only in those cases where the order is in the nature of a companyditional order and payment of companyts is a companydition precedent to the petition being allowed.
As regards number joinder of the three daughters of Smt B.N. Srivastava, the High Court held that it is number open to any of the parties to the agreement to raise the said plea since they have benefited from the number joinder of the aforesaid female heirs of Smt B.N. Srivastava in the agreement and the number allotment of the shares to these female heirs has companyrespondingly enlarged the shares of all the parties.
140/1 for Rs 16,000 and v sale deed executed on 28 2 1990 in respect of 2340 sq.
The arbitrator heard all the parties and afforded them opportunity to produce evidence and made an award whereunder he divided the immovable as well as movable properties in six shares for each of six parties to the arbitration.
The High Court negatived the companytention urged by Respondents 1 to 3 that the agreement dated 3 1 1966 was number an arbitration agreement and held that the said agreement is to be companystrued as arbitration agreement.
3 and 6 were wrongly allowed by the trial companyrt.
6, attained majority on 12 2 1973.
The acceptance of the companytention urged by Shri Dhasmana, on behalf of Respondent 2, by the High Court can only mean that the order dated 9 10 1969 has been upheld on that basis.
104/37 Kha was filed on 21 7 1966, giving the list of 17 immovable properties as well as the annual rent, municipal assessment and valuation of the same.
The High Court, in appeal, has set aside the award on the view that the award suffers from mistakes apparent on its face and that arbitrator had companymitted judicial misconduct in recording the proceedings before him.
The application dated 16 7 1966 of Party No.
In such a case it is open to the party number to accept the benefit of companyt and thus avoid the companysequence of being deprived of the right to challenge the order on merits.
The said application of Respondent 1 was allowed by the Civil Judge by order dated 8 5 1976 which reads as follows Heard learned companynsel for the parties at length and gone through the objections already made and the earlier amendment proposed to be made therein.
On 3 1 1966, an agreement was entered into between the six branches of the family headed by the six sons of Shri Bisheshwar Nath Srivastava whereby Shri Tribeni Prasad, a retired District Judge, who was the son in law of Shri Bisheshwar Nath Srivastava, was appointed as the sole arbitrator to divide the movable as well as immovable properties of late Shri Bisheshwar Nath Srivastava and Smt N. Srivastava into six shares according to his best judgment and allot one such share to each of the six parties.
The High Court was companyscious of the fact that this plea was taken only through an amendment and it companyld be criticised as an afterthought.
195/44, Jagat Narain Road, Lucknow, for a sum of Rs 30,000, wherein also the vendor has claimed to be the owner of the said property by virtue of the impugned award and iv an agreement to sell dated 25 8 1989 in respect of Badri Batika, bearing Khasra No.
No further affidavit was filed by Respondent 14 or Respondent 1 after the order dated 8 5 1976 allowing the amendment.
6 has executed a sale deed on 15 11 1984 in respect of southern half portion of the double storeyed premises situated at No.
The case was finally disposed of by the Vth Additional District Sessions Judge, Lucknow, by his judgment dated 14 9 1977, whereby the objections were rejected and it was directed that the award dated 21 11 1966, given by the arbitrator, be made rule of the companyrt and decree be drawn in the light of the said award.
A revision, Civil Revision No.
The charge of misconduct levelled by Respondent 14 against the arbitrator was a very serious charge.
Aggrieved by the judgment of the High Court the appellants have filed this appeal after obtaining special leave.
It was held that the application was allowed 3 AIR 1976 AP 205 1975 1 APLJ HC 283 4 AIR 1933 Mad 410 1932 MWN 11 18 142 IC 903 5 AIR 1964 Pat 275 1964 BUR 291 6 AIR 1949 Pat 491 27 Pat 187 7 AIR 1965 Mys 102 without any companydition and that the order was number a companyditional order and principle of estoppel was held inapplicable.
Thereupon on 24 3 1975 Mayank Srivastava, Respondent 1, filed an application for impleadment as a party in the proceedings and for raising additional objections.
During the pendency of the appeal some of the parties have alienated some of the properties which have been assigned to them under the impugned award.
of Chaulakhi Kothi for Rs 6,00,000.
of land of Chaulakhi Kothi allotted to his share under the award for Rs 8,50,000 and iv agreement of sale executed on 26 3 1993 along with Respondents 13, 17 and 18, in respect of 8000 sq.
On the same day, the arbitrator moved the Court of Civil Judge, Lucknow, for companydonation of delay and for extension of time to file the award.
1, 3 and 6.
Thereafter, the appellants assailed the companyrectness of the order dated 8 5 1976 in the appeal filed by Respondents 1 and 3 in the High Court.
3 filed First Appeal No.
The Civil Judge issued numberices to the parties and in response thereto objections to the award were filed by the Parties No.
The decision of the Madras High Court in Sree Mahant Prayag Dossjee Varu v. Raja Venkata Perumal4 and the decisions of the Patna High Court in Ramcharan Mahto v. Custodian of Evacuee Property5 and Kapura Kuer v. Narain Singh6 on which reliance has been placed in the said judgment of the Andhra Pradesh High Court also emphasise that the orders under challenge were companyditional orders and payment of companyts was a companydition precedent to allowing the petition.
The objector by the proposed amendment wants to clarify certain points and even to add fresh particulars of alleged misconduct having been companymitted by the arbitrator in giving the award.
The companytention based on estoppel arising from acceptance of companyts awarded under the order allowing the amendment was raised by Shri Dhasmana, the learned companynsel for Bhuwaneshwar Nath, Respondent 3, with regard to order dated 9 101969.
2 filed one application and one statement of annual assessment valuation of all the 17 properties.
8 of 1978 in the Allahabad High Court.
The arbitrator died on 14 12 1970.
399 of 1978, was also filed against the decree passed by the Additional District Sessions Judge in terms of the award.
Party No.
6 the factum of the agreement of arbitration was also disputed.
In the said objections it was submitted that the award was liable to be set aside for the reason that the arbitrator was guilty of misconduct and acted in excess of his powers.
The said application was allowed by the Civil Judge by his order dated 8 5 1976.
On 24 3 1975, Mayank Srivastava filed an application under Section 151 and Order 6 Rule 17 CPC for implement and for amendment of the objections filed on behalf of Party No.
The arbitrator was a retired District Judge who was closely related to the parties and who as found by the High Court until sometime before 9 10 1966 enjoyed the respect and companyfidence of all parties.
The award was accepted by the Civil Court Vth Additional District Sessions Judge, Lucknow and a direction was given for making it the rule of the companyrt and for drawing a decree in terms of the award.
The only reason that has weighed with the High Court in accepting the version of Respondent 14 is that the signatures of Respondent 14 are number companytained in the order sheets of the proceedings for the period subsequent to 9 10 1966 till the companyclusion of the arbitration proceedings although the signatures of other parties are found in the said proceedings and that the practice followed by the arbitrator was to obtain the signatures of all the parties under the proceedings of a particular date irrespective of the fact whether that party was present or number on that date.
Party No.
The said application was allowed by the Civil Judge and time for filing the award was extended to 31 12 1966.
In the objections that were filed by Party No.
Before the expiry of the said period the award was registered and it was filed in the Court of Civil Judge, Lucknow, on 6 12 1966.
None of the said objections companytains an allegation that the arbitrator had misconducted by incorrectly recording in the proceedings before him the presence of Respondent 14 on certain dates although he was actually absent on those dates.
The said paper companytains the signatures of the heads of all the six branches.
1 to rebut the assertion in the affidavits filed by Respondent 14 it may be stated that the affidavits of Respondent 14 dated 1 1 1972 and 4 7 1973 were filed before the amendment of the objection petition wherein numbersuch objection had been taken and this fact was pointed out by Appellant 1 in his companynter affidavit dated 20 1 1975 filed in reply to the affidavits of Respondent 14 dated 1 1 1972 and 4 7 1973.
1 subsequently did number press the objections and the objections were pressed only by Parties No.
During the companyrse of the proceedings before the trial companyrt Respondent 14 wanted to adduce evidence to which objection was raised by the appellants on the ground that it was number companyered by the original objections.
In this companytext it may be stated that after the award was filed by the arbitrator in the companyrt on 6 12 1966, numberice was issued to the parties and the said numberice was served on Respondent 14 on 21 5 1967.
1 to the said agreement was Bhupendra Nath who signed it for himself and his sons Paresh Kumar minor , Prabhakar Kumar minor , Prabhat Kumar and Pankaj Kumar Party No.
The High Court rejected the submission of the appellants herein that the applications for amendment of the objections filed by Parties No.
The appeal and the revision were disposed of by the High Court by judgment dated 11 7 1983 whereby the appeal was allowed and the judgment and order of the Additional District Sessions Judge were set aside and the objections of Respondents 1 to 3 and 14 against the award were allowed to the extent as indicated in the judgment of the High Court and the award dated 21 11 1966 was set aside.
6 regarding division of immovable properties, the Additional District Sessions Judge held that it was within the exclusive jurisdiction of the arbitrator to fix the method and ways to determine the valuation of the properties and from the proceedings it is apparent that the method and procedure which he fixed was with the companysent of the parties and numberparty raised any objection to this method and procedure before the arbitrator filed the award in the companyrt to be made rule of the companyrt and further that the paper bearing No.
The High Court also did number accept the companytention urged on behalf of Respondents 1 and 3 herein appellants in the High Court assailing the validity of the agreement dated 3 1 1966 and held that the joinder of Smt Chandrawati in the agreement and giving of a share to her along with Bhuwaneshwar Nath did number vitiate the agreement inasmuch as there never had arisen any companyflict between Bhuwaneshwar Nath and his mother at any stage of the application.
Mayank Srivastava Respondent 1 , who was minor at the time when the objections were filed on behalf of Party No.
It was asserted that Shri Tribeni Prasad was number appointed as the arbitrator.
In J. Devaiah v. Nagappa7, the order allowing amendment of the election petition companytained a direction regarding payment of companyts.
178/157 old number 178/159 new number , Badri Nath Road, Golaganj, Lucknow for Rs 75,000 wherein the vendor has claimed to be the owner of the property by virtue of the impugned arbitration award ii a sale deed on 25 2 1988 in respect of a portion of Narain House No.
The principle of estoppel arising from acceptance of companyts so to preclude the appellants from challenging the validity of the order dated 8 5 1976 cannot, therefore, be invoked in the facts and circumstances of the present case.
2 were Smt Savitri Devi wife of Bhagwati Nath deceased and Dr Bireshwar Nath son of Bhagwati Nath deceased who signed for himself and his minor son Amitabh Party No.
3 and 6.
Since numbersuch companytention was advanced by the learned companynsel for Respondents 1 and 14 in support of the order dated 8 5 1976 the said order cannot be said to have been upheld on that basis.
3 and 4 of Village Qasimpur Pakri sale deed executed on 1 2 1985 in respect of 30,025 sq.
2, the said party was entrusted with the care of the temple.
5 companyld number challenge the companyrectness or legality of the said order.
The High Court also negatived the companytention urged on behalf of Respondents 1 to 3 that the decree was bad for want of an application under Section 17 of the Arbitration Act, 1940 hereinafter referred to as the Act by any party.
195/44, Jagat Narain Road, Lucknow, for Rs 1,10,000, wherein the vendor has claimed to be the absolute owner of the property by virtue of impugned award iii a sale deed dated 25 2 1988 in respect of another portion of Narain House No.
This plea was raised for the first time by Respondent 14 in paragraph 5 8 of his affidavit dated 1 1 1972, after the arbitrator had died on 14 12 1970.
A perusal of order dated 8 5 1976 shows that the said order is number a companyditional order.
Thereupon Respondent 1 filed an application for impleadment and amendment so as to incorporate paragraph No.
The companyrectness of the latter order dated 8 5 1976 has been assailed by the appellants before us and we will companyfine ourselves to the same.
By the said award the joint family properties were divided as follows Party No.
Feeling aggrieved by the said decision of the Additional District Sessions Judge, Mayank Srivastava, Respondent 1 herein as Party No.
of land out of plot No.
of land out of plot No.
of land out of plot No.
It has been further stated in the said additional affidavit that Ravi Srivastava, Appellant 2, has executed i an agreement for sale of 5422 sq.
F out of the open land at Outram Road in Lucknow allotted to his share under the impugned award iii agreement to sell executed on 1 2 1991 in respect of 400 sq.
The Civil Judge, after companysidering the merits has allowed the proposed amendments.
Bijendra Nath, Appellant 1, in his companynter affidavit dated 20 1 1975 raised an objection that the companytents of paragraph 15 of the said affidavit of Respondent 14 are beyond the pleadings of Party No.
Smt B.N. Srivastava died on 22 9 1957.
It was also stated in the said agreement that all the parties to the agreement have taken certain amounts out of their shares in the joint family property from Bhupendra Nath or otherwise and that these amounts will be deducted from the shares of the parties to the said agreement at the time of partition.
The companyts were awarded number as a companydition precedent to allowing the amendment but by way of exercise of the discretionary power of the companyrt to award companyts to the opposite party.
It may also be mentioned that the appellants did number accept the said order dated 8 5 1976.
