BAJJURI RAMAKISHTAM Vs. BHOOPATI SOMALINGAM

JUDGEMENT

(1.) .C.M.A. No. 190 of 1959 : This appeal is filed by the first defendant against the Order of the Subordinate Judge, Warangal, refusing to set aside an award and passing a decree in terms of the award. As disputes arose between the appellant and the first respondent in regard to the properties left by one Latchamma, who died in or about 1957, the parties submitted them to the arbitration of two persons, Konduru Ramalingam and J. Lakshminarayana, the present respondents 3 and 4. The arbitrators, after making the necessary enquiries into the matter, made an award dated 20th June, 1958 and gave notice of it to the parties on 2nd July, 1958. Under the award, the first and second respondents were to be given the house property which is involved in this appeal and the appellant was to be paid by the first and second respondents a sum of Rs. 3,285-11-9. As the appellant was not willing to abide by the award, the first respondent filed a petition under section 14 of the Arbitration Act to direct the arbitrators to file the award into Court and to make the award a rule of Court. The appellant filed objections to the award and prayed for setting aside the award. The chief grounds of attack against the award were that the arbitrators misconducted the mselves in that one of them did not participate in the proceedings which culminated in the award and that the arbitrators failed to note that the widow had acquired absolute rights to the property in the suit under the Hindu Succession Ac:t, 1956, the award decree of 1902 which only gave a life estate to the widow in the house being a nullity by reason of its having been passed against a minor without appointing a guardian The Subordinate Judge rejected the objections raised by the appellant and passed a depree in terms of the award. It is that decision that is under appeal now. In support of this appeal, the same contentions are urged before us. In order to appraise the legal contentions arising in this, it is useful to state briefly the material facts. One Bhoopati Somalingam died in or about 1901 leaving considerable properties behind him and survived by his adopted son, the present first respondent, the father of the second respondent and his widow Latchamma who was then very young having been married a year or two before his death. Immediately thereafter, there were disputes between the parties in regard to those properties and they were referred to some arbitrators. After taking into consideration all the relevant factors, the arbitrators gave their award by and under which Latchamma was to get Rs. 19,000 in cash, and gold and silver jewels, etc., worth Rs. 4,000 and houses with limited rights therein. This award was embodied in a decree of Court on an application filed on behalf of Latchamma. Ever since, she was in enjoyment of these properties till her death in or about 1957. On her demise, the adopted son of Somalingam and his son, the present respondents 1 and 2, laid claim to these properties as the nearest reversioners, while Latchamma's brother, the present appellant, claimed these properties as a legatee under a will alleged to have been executed by Latchamma on 8th September, 1942. These disputes were referred to the arbitration of respondents 3 and 4 and they resulted in the award which is the subject-matter of this appeal. Before we discuss the merits of the contentions urged on behalf of the appellant, we will have to deal with the preliminary objection raised on behalf of the respondents as to the competence of this appeal. It is urged by Sri B.V. Subrahmanyam that a Civil Miscellaneous Appeal could not be entertained having regard to the terms of section 17 of the Arbitration Act, which bars an appeal from a decree made under that section except on the ground that it was in excess of or not otherwise in accordance with the award. The view sought to be pressed upon us by the learned counsel is that, as the decree is in conformity with the award, no appeal would lie against that award and that, in any event, it is only an appeal as contemplated by section 96, Civil Procedure Code, with ad valorem Court-fee that could be filed and not a Civil Miscellaneous Appeal with a fixed Court-fee. As this objection is founded on the terms of section 17 of the Arbitration Act, it is convenient to quote it here.

(2.) " Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced, a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of or not otherwise in accordance with the award." If it is this section that governs the matter, there can be little doubt that the present appeal is incompetent since it could not be postulated that the decree of the Subordinate Judge is in excess of or is inconsistent with the award. But, we are not persuaded that section 17 comes into play in this behalf. In our judgment, it is section 39 of the Arbitration Act which is applicable here. Section 39, so far as it is of immediate relevance, is as follows :- " (1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the orders:- An order- (i) superseding an arbitration. (ii) on an award stated in the form of a special case, (iii) modifying or correcting an award. (iv) filing or refusing to file an arbitration agreement. (v) staying or refusing to stay legal proceedings where there is an arbitration agreement. (vi) setting aside or refusing to set aside an award." It appears to us that the instant case comes within the ambit of clause (vi) It is true that, after refusing to set aside the award, the trial Court made a decree giving effect to the award. But, that is not decisive of the matter. It should be borne in mind that the appellant wanted that his objections to the award should be upheld and that the award should be set aside. This prayer of the appellant was not granted and his petition to set aside the award was dismissed and then the award was made a rule of Court. It is the order overruling the objections of the appellant and refusing to set aside the award that is the subject of challenge in this appeal and consequently it attracts section 39 of the Arbitration Act and it is not an appeal under section 17 of the Arbitration Act read with section 96, Civil Procedure Code. There is also no substance in the argument of Sri B.V. Subrahmanyam that ad valorem Court-fee should be paid on the value of the property involved in this appeal, since under Article 4 of Schedule II of the Courtf-ees Act, a fixed fee of Rs. 200 is prescribed when the value exceeds Rs. 20,000 and that Court-fee has been paid. It is true that, in the lower Court, the same Court-fee of Rs. 200 was paid instead of Rs. 300 as provided by Article 11 (m) (ii) (3) of the Court-fees Act.

(3.) WE are not inclined to accede to this proposition. In the decision of the question as to the effect of the absence of one of the arbitrators at some of the meetings, the following circumstances have material bearing. At no stage of the proceedings had the appellant demurred to this procedure, though he was present at every one of the meetings.