VEERAVALLI PERAYYA DIED Vs. SUKHAVASI CHENCHU SUBBA RAO

JUDGEMENT

(1.) DEFENDANTS 1 to 5 and 14 to 16 are the appellants. This appeal arises out of a suit in forma pauperis for a declaration that the decree in O. S. No. 48 of 1944 passed in terms of the award is not binding on the plaintiff and his brother, the 21st defendant Sukhavasi Basava Chenchayya, that the suit in which the award was made be revived and the plaintiff be permitted to file objections to the award and also for rendition of accounts and redemption of the property mortgaged by his father.

(2.) BRIEFLY stated, the facts are; Plaintiff and defendant No. 21 are real brothers. Their father, Tatayya, died in 1934. Before long their mother also passed away. They had then an elder brother but he too died in 1944. Tatayya during his lifetime contracted debts. He on his own behalf and as guardian of his three minor sons in that connection eventually executed a usufructuary mortgage deed D/- 15-10-1930 in favour of defendants 17 to 20 in respect of the plaint A schedule properties for a sum of Rs. 6650.00 found to be due from him. One of the terms of the deed was that it should be treated as an out and out sale if the property is not redeemed before 15-3-1932. After the death of Tatayya, defendants 17 to 20 on 15-5-1936 soldi their interest in the suit property to the 1st defendant for a sum of Rs. 1575.00. The defendants 2 to 5 are the undivided sons of the 1st defendant. The other defendants are alienees of portions of plaint A schedule property from the 1st defendant. It is not necessary for the purpose of this appeal to set out in detail these alienations. Suffice it to say that the plaintiff now called in question these transactions as collusive and as such binding neither on the plaintiff nor on his brother, defendant No. 21. As the plaintiff and defendant No. 21 were orphans at the time and the person who looked after them was their sisters husband, Nannapaneni Veerayya, the said Veerayya brought a suit O. S. No. 48 of 1944 as the next friend of plaintiff and 21st defendant before the Sub Judge, Tenali for redemption of the mortgaged properties, its possession and rendition of accounts against the defendants as in the present suit. The suit was resisted inter alia on the ground that the father of the plaintiff, before he died, had, under an oral sale on 4-6-1934, sold his rignt of redemption for a sum of Rs. 75.00 and which he admitted in his letter subsequently sent to the 1st defendant. During the course ot proceedings the matter at the instance of the parties was referred to an arbitrator of the parties choice. The petition for submission to arbitration (I. A. No. 1956 of 1945) was made by the parties on 24-9-1945. The plaintiff and the 21st defendant being minors, permission under Order 32, Rule 7 C. P. C. was applied for. This petition was accompanied by an affidavit duly sworn and the counsel appearing on behalf of the minors certified that in the circumstances of the case a reference to arbitration is beneficial to and is in the interest of the minors. The court, after due satisfaction granted leave to the minors to refer the matter to arbitration. The matter alone was referred to the arbitration on 24-9-1945. The award after due inquiry was made on 21-11-1945 by the arbitrator and it was filed into Court on 22-11-1945. The 21st defendant, the brother of the present plaintiff who was also plaintiff in that case had become major by that time. An application for declaring the 1st plaintiff (21st defendant) as major and to discharge the guardian was made on 18-11-1945 by his counsel. The alleged major too made an application to that effect personally. He was declared a major on 26-11-1945 and the guardian was discharged. He then stated to the court in person that he has no objection to the award. The plaintiffs next friend appeared in person and likewise said that he had no objection to the award. All the defendants also said that they had no objection. As all the parties had no objection, the court after due satisfaction pronounced judgment, in conformity with the award, on 26-11-1945 without waiting for the expiry of 30 days prescribed by the statute for setting aside the award. No application was however made during the Statutory period thereafter for setting aside the award. The minor plaintiff, within three years after his attaining majority, in a separate suit out of which this appeal arises, called in question the order of reference, the award and also the decree passed in conformity therewith. Besides, he applied for rendition of accounts and redemption and possession of the mortgaged property.

(3.) ON the pleadings, 17 issues in all were raised and alter due enquiry the learned Subordinate Judge of Tenali held that the suit of the plaintiff so far as it touches the validity of cither the reference to arbitration or of the award made in pursuance thereof is not tenable in law under the provisions of Sections 31 to 33 of the Arbitration Act but that nevertheless it is open to the plaintiff to challenge the validity of the decree, that the suit tiled in this behalf is within time and that though the decree in O. S. No. 48 of 1944 is not vitiated by fraud or collusion as alleged, it is nevertheless liable to be set aside as it was passed before the expiry ot the time fixed for making an application to set aside the award and the provisions of Section 17 of the Arbitration Act in this behalf being mandatory in character, the decree in contravention of such provisions is a nullity.