ARATI PAUL versus THE REGISTRAR, ORIGINAL SIDE, HIGH COURT CALCUTTA & ORS.

Citation: [1969] 3 S.C.R. 926 · Decided: 10-03-1969 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Dismissed

Judgment (excerpt)

ARATIPAUL 
v. 
THE REGISTRAR, ORIGINAL SIDE, HIGH COURT 
CALCUTTA & ORS. 
March 10, 1969 
[J. M. SHELAT AND V. BHARGAVA, JJ.] 
Practice & Procedure-Judge seized of suit-Parties agreeing to refer 
nWlters in dispute to arbitration of Judge-Decision and decree by Judge 
-Whether award or judg1nent of court. 
When a partition suit and connected testamentary suit were pending 
before a Judge on the original side of the High Court of Calcutta, the 
parties filed an agreement before the Judge and got it recorded that the 
matters in dispute in both the suits were to be referred to the sole arbi-
tration of that Judge. 
The parties agreed to abide by any decision that 
might be given by the Judge and that no evidence need be taken except 
to the extent that the Judge may desire and that the evidence need not 
be recorded in any !annal manner. It was also agreed that the Judge 
was to have all summary powers including the power to divide and parti-
tion the properties. 
At '!he same time the parties added that the Judge 
was to make such decrees as he thought fit and proper and for the pur-
pose of partition, if necessary, he could engage or appoint surveyors and 
commissioners. 
The Judge thereafter gave a decision passing a prelimi-
nary dectec in tlie partition suit and it was filed on the record of the suit 
as a judgment. A preliminary decree was d'rawn up in terms of that order 
but before it was signed, the plaintiff presented a petition under An. 226 
of the Constitution for the issue of a writ of marrdamus directing the 
Registrar of the High Court to recall, cancel and withdraw the .order and 
take it off the record .of the panition suit as it was not a judgment in the 
suit but was only an award. The writ petition was dismissed by the High 
Coun. 
lo appeal to this Court, 
HELD : Where an arbitration agreement envisages that the Presiding 
Jud~e of the Cpurt should himself act as an arbitrator he will occupy_ a 
dual capacity. 
He will be both an arbitrator to decide the matters re· 
ferred to him by the agreement of the parties and a court, before which 
the suit continues to remain pending, with jurisdiction to deal with the 
suit in accordance with the provisions Of the Arbitration Act (942 F] 
In the present case the powers, conferred by the agreement on the 
Judge already seized of the partition suit, were intended to enable him 
to function as an arbitrator so as not to be bound by the rules of proce· 
<lure applicable to him as a court. If such a refe'rence to arbitration by 
a Presiding Judge before whom the suit was pending dould not be com-
petently made under the Arbitration Act, then the order by the JL?dge 
must be held to be a preliminary decree passed by him as a court seized 
of the partition suit. 
If there was a competent 'reference, then, after de-
ciding the matters referred to him as an arbitrator, the Ju.dg~ proceeded 
to deal with the suit himself as a court and to pass a preliminary decree 
in it. 
Such a course was contemplated by the parties themselves when 
they stat•d that the Judge could make such decrees as he thought fit. A 
A 
B-
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
ARATI v. REGISTRAR (Bhargava, J.) 
927 
decree could only be passed by the Judge·in his capacity of a c.ourt seized 
of the suit, because, an arbitrator could not pass a decree. 
The actual 
order passed by the Judge also made it clear that, in passing it, he pur-
ported to act as a court deciding the suit and not as an arbitrator to whom 
some matters in dispute were referred by the 
parties. 
Therefore, 
the 
order of the Judge \\'us a judgment and not an award. 
Since it was a 
judgment of the Court, the Registrar of the High Court, under the Rules 
of the Calcutta High Court on the original side, was bound to file it on 
the record and retain it there and the appellant \a.:as not entitled to the 
relief claimed. [942 A·D, F-H; 943 A-Fl 
Bickett v. Morris, (1866) L.R. 1 H.L. Sc. 
47, 
White v. Buccleuch 
(Duke) (1866) L.R. 1 H.L. Sc. 70, Robert Murr~v Burgess v. AnYlrew 
Morton, [18961 A.C. (H.L.) 136, Wyndham v. Jackson, [19371 3 All E.R. 
677, Wyndham v. Jackson, [1938] 2 All E.R. 109, Sayad Zain v. Kalabhai 
Lo//ubhai, I.LR. 
23 
Born. 752, 
Raoji Trimbak Nagarkar v. Govind 
Vinayak Nagarkar, 
(1897) 
P.J. 413, 
Baikanta Nath Goswami v. Sita 
Nath Goswami, I.L.R. 38 Cal. 421, Nidamarthi Mukkanti v. Thammana 
Ramayya, I.L.R. 26 Mad. 76, Chinna Venkatasami Naicken v. Venkata· 
sami Naicken & Anr. I.L.R. 42 Mad. 

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