S MAHADEVA IYER Vs. M S SASTRI

JUDGEMENT

(1.) The plaintiff has preferred this Second Appeal from an order in execution of the decree in O. S. No. 993 of 1124 of the District Munsiff's Court of Trivandrum. The decree in the case was passed on the basis of a compromise petition filed by the parties. There was a clause in the compromise petition that disputes, if any, in working out the decree were to be referred to three arbitrators named in the petition. In accordance with the said provision the plaintiff referred certain disputes to the arbitrators who gave an award. The award was produced in court and the court passed an order 'Recorded', The plaintiff filed an execution petition in O. S. No. 993 seeking to execute the award. The execution petition was at first dismissed but on appeal to the District Court the order was set aside and the execution court was directed to treat the execution petition as one to execute the decree and not the award and to see whether there were any reliefs which could be granted on that basis. After remand the execution court held that the award formed part of the decree and that the reliefs claimed in the execution petition could be allowed. The defendant preferred an appeal to the District Court and the Additional District Judge reversed the order and dismissed the execution petition. The plaintiff has therefore preferred this Second Appeal.

(2.) The first point urged by Shri. Parameswara Kurup, learned counsel for the appellant was that under the Travancore Arbitration Act, XI of 1115 the award was executable as a decree of the court. It was pointed out that the provision in the compromise enabling the parties to refer disputes to arbitration amounted to a "submission" as defined in the Act and that the order "recorded" was in effect one filing the award as contemplated in S.15 of the Act. There is no difficulty in accepting this position viz., that an award filed under S.15 can be executed but in view of the prior proceedings in the case, the appellant is not entitled to any relief. In the earlier appeal to the District Court (A.S. 545 of 1953) it was held:

(3.) It was further contended that the view taken by the execution court viz., that the award formed part of the decree was correct and that execution could be allowed on that basis. I am unable to accept this argument. To treat the award as part of the decree would be to hold that the award modified the decree by adding certain provisions to it. A decree once it is passed can be modified only in one of the modes recognised by the Code of Civil Procedure. The provision to refer to arbitration formed part of the decree and this part was carried out. To hold that the award amounted to a decree would amount to allowing the arbitrators to usurp the jurisdiction of the court. As the terms of the award do not form part of the decree the plaintiff cannot be allowed to enforce the award in execution of the decree; the execution court has only to execute the decree as it stands.