KAPGAL KONDA GIREANNA AND Vs. KAPGAL KONDA BASAPPA

JUDGEMENT

(1.) A moot point arises for determination in this second appeal as to whether notwithstanding Section 32 of the Arbitration Act defendants are entitled to take shelter under, and to rely upon, the terms of an unregistered award passed by the arbitrators.

(2.) PLAINTIFF-respondent filed a suit for possession of lands and for mesne profits. The contesting defendants who are appellants before this Court alleged that a partnership shop in the name and style of 'Halkod Venkata Setty and Konda Manikya Setty' was run in Raichur of which the plaintiff, the defendants and one Halkod Gundaiah were partners. Halkod Gundaiah had eight annas share therein and in the remaining eight annas share plaintiff had five annas four pies share and the two defendants had two annas and eight pies share. This business was closed on account of disputes between the partners. The dispute was referred to the arbitrators as per the agreement marked Exhibit A-1 in the case dated Karthika Sudda Panchami of Jayanama Samvastara, correspondent to November 1954. The arbitrators passed an award on 24-11-1954 marked as Exhibit A-2 in the case to the effect that plaintiff had to pay a sum of Rs. 10,000/- to the defendants in respect of the partnership dues to the shop. Until that amount was paid, the suit, properties should be in the possession of Halkod Gundaiah who should pay the defendants the amount due to them out of the usufruct of the land. As per its terms Halkod Gundaiah took possession of the suit properties. He, in turn, put the defendants in possession thereof to enable the latter to realise the dues therefrom. Hence the defendants contended that they were entitled to be in possession of the suit properties until their dues were paid up and plaintiff's suit in disregard of the Award to which he was a party was liable to be dismissed.

(3.) THE main contention of Sri Jagirdar for the defendants-appellants in this second appeal is that notwithstanding Section 32 of the Arbitration Act, the defendants are entitled to make use of the terms of the award for collateral purpose as a defence to the suit for possession and mesne profits brought against them. Though such a plea was not taken in defence at the first instance nor any specific issue was raised thereon as it is a point of law arguments were allowed to be addressed on the same.