KUNHEEN MARAKKAR Vs. KUNHIPATHUMMA

JUDGEMENT

(1.) THIS revision is by the 1st defendant and is directed against an order of the Court below which allowed to certain extent, a petition under Section 33 of the Indian Arbitration Act, filed by the respondent-plaintiff before it.

(2.) THE suit was one for partition and recovery of the plaintiff's share with profits. Pending Suit, the parties compromised their differences by agreeing to the properties available for partition, the shares duo to the parties, and also the properties from which and the period during which the parties were liable for mesne profits inter se. But they left the estimation of the actual amount of profits and also the valuation of the properties to a lawyer Padnanabhan Nair and following the valuation, the division and allotments to Kunhahammad Musaliar who was also to decide the question of costs. THE parties agreed finally to execute and register a partition deed to be drawn up by the said Musaliar in accordance with his decisions. THE parties incorporated their agreements aid understandings as above, in a joint application which they made to Court on 3-2-1950, with prayer added that a preliminary decree, in terms of the settlement, may be passed. THE Court complied with the prayer and passed preliminary decree on the same date. Subsequently, on 16-9-1952 the plaintiff made applications to Court, firstly for removing the arbitrator Kunhahammad Musaliar from his office as such, on account of his failure to have the properties divided; secondly for steps to be taken by Court in pursuance to the preliminary decree, by issue Of a commission for effecting partition as per the preliminary decree. THE defendants 1 to 3 objected to the petitions on the basis that under the compromise the suit had been terminated and the parties did not contemplate any further proceedings through Court. By order dated 22-1-1954 the Court found that no sufficient ground for removing the arbitrator had been made out, but at the same time, he must be impelled to fulfill his function. Accordingly the Court prescribed a further period of three months from the date of the order for the making of the award. By 10-9-1954, however, the arbitrator had not made his award and on that day the plaintiff filed petition to call upon the arbitrator to file his award but before the petition was disposed of, he filed the present petition under S. 53 challenging 'the validity of the arbitration agreement between the parties and praying for its displacement altogether. According to the plaintiff the entire proceedings commencing with the application of 3-2-1950 were null and void and the suit must be deemed to he still pending so as to be continued from the stage at which it had reached prior to the filing of the petition, This petition was opposed by the defendants 1 to 3 on the ground they had earlier taken, that the suit had been finally terminated and was no longer liable to be revived. According to the defendants, the final decree had been passed by the Court though it might be that all the disputes involved in the suit had not been completely disposed of but that was because the parties had not contemplated any further approach to the Court. THE Court below found that by the petition of 3-2-1950 the parties had intended and purported to refer disputes between them involved in a pending suit to arbitration and such reference not having been made with the intervention of the Court as provided in Chapter IV of the Arbitration Act, was not valid in law. But on the further question as to what should follow, the Court refused to accept either of the extreme position taken by the parties and so it upheld the decree passed on 32- 1950 as a valid preliminary decree. In the result the petitioner was allowed to avoid the procedure arbitrator and his award, and get an a from the Court itself, as regards the question: the parties had left open in their petition of 8-(sic) Hence this revision by the 1st defendant (sic)

(3.) SECTION 21 of the Arbitration Act, which is in Chapter IV which deals with arbitration in suits runs thus :