MAMMOO ALIAS KUNHAMMED KEYI Vs. CHERIA KADERKUTTY KEYI

JUDGEMENT

(1.) IN this revision petition, on behalf of the defendant petitioner, Mr. V. Rama Shenoi, learned counsel, challenges the decree of the learned Subordinate Judge of Tellicherry. accepting the claim of the plaintiff -respondent on the basis of an award, passed by an arbitrator on a reference by agreement of parties, on 3 - -2 - -1961. The main contention taken by the learned counsel for the petitioner before the court below, as well as before this Court, is that the suit for enforcing a claim arising out of an award passed by an arbitrator - -no doubt appointed outside court - -under the provisions of the Arbitration Act, 1940 (Central Act 10 of 1940) - -is not maintainable and that such a suit is barred by section 32 of the said Act. In order to appreciate the contentions that have been taken by Mr. Rama Shenoi learned counsel for the petitioner, as well as by Mr. V. R. Krishna Iyer learned counsel for the respondent, it is necessary to set out the circumstances under which the claim in the suit came to be made by the respondent -plaintiff.

(2.) THE plaintiff, the defendant and their sister Beebi, were heirs to the estate left by their deceased father A. P. Kunhi Pakky. There is no controversy that these three parties referred to above, entrered into an agreement on 11 - -5 - -1960, to refer their diputes regarding the shares to be allotted to them in the estate of their father, to an Advocate viz., Shri P. M. Abubacker. There is also no controversy that an award was made under Ext. A1, by the said arbitrator on 3 - -2 - -1961. We, are not concerned in these proceedings with the various other matters dealt with in the award, excepting the item of claim which is the subject of the present suit. In paragraph 9(a) of the agreement to refer the disputes to arbitration, it is stated that the parties have agreed to allow the defendant to be in possession of the properties make the collections, and deposit the collections every month before the arbitrator who is to make tentative disbursements pending Final adjudication by him regarding the actual rights of the parties in respect of the total collections that may be made by the defendant. The provision was to the effect that the defendant was to be in such possession and make necessary collections and deposit the income from the date of the agreement to the date of the award.

(3.) THE grievance of the plaintiff is, that notwithstanding the fact that the notice Ext. A2, was sent to the defendant, calling upon him to pay the amount mentioned in paragraph 8 of the award, the defendant has defaulted in complying with the said demand, and therefore he has instituted the present suit, for recovery of the said amount.