CHIEF ENGINEER SOUTHERN ARMY POONA Vs. HARIKIRATSINGH

JUDGEMENT

(1.) One Lt. Col. Harikirtsingh, care of Chief Engineer, Southern Command, Poona, made an application to the Court of the District Judge, Bangalore Miscellaneous No. 139 of 1947-48, under S. 11(2) of the Mysore Arbitration Act. It appears from the allegations made in that petition that in respect of an agreement entered into at Bangalore City between the Chief Engineer, Sourthern Army, on behalf of the Governor-General in Council of the one part and Messrs. Patel B. M. Venkataswamappa and Brothers of the other part under which the latter agreed to supply 40 lakhs of bricks at a certain rate and within a specified period, differences and disputes having arisen those were referred to arbitration pursuant to the provisions of the said agreement and that the Arbitrator, one Col H. W. Bush, made an award on 8-10-1947 holding that Messrs. Patel B. M. Venkataswamappa and Borthers should pay Rs. 12,575/- to the claimant, the Governor-General in Council represented by the Chief Engineer, Southern Army, Poona. Harkiratsingh further alleged that the Arbitrator having been requested by the Chief Engineer, Southern Army, one of the parties to the dispute, to cause the award to be filed into Court, has by his letter dated 6-12-1947, directed him to file the same in Court. He, therefore, prayed that the award may be filed in Court after issue of notice to the parties viz. (1) Chief Engineer, Southern Army, Poona, and (2) Patel Venkataswamappa and Brothers, Byappanahalli, Hebbal P. O. Bangalore. The order sheet shows that the first respondent, Chief Engineer, received notice, appeared through counsel and filed a statement consenting to the award being filed and made into a dercree of Court. It is further found recorded in the order sheet that the 2nd respondent, Patel B. M. Venkataswamappa and Brothers, had refused notice and that the Court holding that the notice was sufficient placed the 2nd respondent ex parte on 26-7-4-1948. On 16-8-1948 the Court passed an order that the award may be filed into Court, that the 2nd respondent should pay costs and that the Miscellaneous Petition be granted. The effect of this, I take it, was that a decree so passed was put into execution and some properties were attached in Execution 332 of 1950-51. In September 51, two applications came to be filed, viz. Mis. No. 109 of 51-52 and 120 of 51-52. The former was presented by B. M. Ramaswamy on behalf of himself and as power of attorney holder of his brothers Appa Reddy, B. M. Narayanaswamy alone in which he impleaded the other four persons mentioned above as respondents 2 to 5, the 1st respondent being the Chief Engineer, Southern Army. The prayer in both the petitions was that the ex parte decree passed in Miscellaneous 139 of 47-48 be set aside. Mis. 109/51-52 was dismissed on 26-11-1953 because both the petitioner and his counsel were absent. The petitioner therein does not appear to have taken any further steps in the matter. In Mis. 120/51-52, however, evidence was taken and by its order dated 19-8-1953 the lower Court allowed the petition. After this petition was so allowed the petition. After this petition was so allowed. Miscellaneous 139 of 47-48 was treated as restored to file to be proceeded with. After several adjournments it was finally dismissed on 8-12-1953 on the ground that the petitioner and his counsel have not appeared for three hearings successively.

(2.) Civil Revision Petition 354 of 1954 is directed against the order dated 8-12-1953 dismissing Miscellaneous 139 of 47-48 and Civil Revision Petition 355 of 1954 is directed against the order dated 19-8-1953 allowing the Miscellaneous 120 of 51-52. It will be convenient to deal with the latter case first.

(3.) It is admitted that the petitioner and respondents 2 to 5 in Miscellaneous 120 of 51-52 are brothers. Venkataswamappa, whose name appears in firm name 'Messrs. Venkataswamappa and brothers, was another brother of these persons. In his affidavit in support of Miscellaneous 120 of 51-52 the petitioner therein B. M. Narayanaswamy complained that he was not aware of any proceedings until on 11-9-1951 his house was got attached in Miscellaneous 139 of 1947-48. His principal appears to have been that he was not a partner of the firm called Venkataswamappa and Brothers. It is better to state his case in his own words and I therefore, copy below paragraphs 2 and 3 of his affidavit: