KAIBALYA NAIK Vs. NISHAMANI PATNAIK

JUDGEMENT

(1.) This is plaintiff's appeal against the judgment and decree of the learned Subordinate Judge, Bhanjanagar (presently designated as Civil Judge, (Senior Division)) passed in Title Mortgage Suit No. 2 of 1983 whereby the suit has been held to be not maintainable being hit by Section 32 of the Arbitration Act, (hereinafter referred to as 'the Act'). The suit filed by the plaintiff was one for damages for Rs. 25,000/-. The case as set out in the plaint is that the plaintiff had purchased the trees standing on the suit land from Bhikari Jena and others, the original owners, but all of a sudden he noticed that the defendant was making preparation to cut and remove the trees. So, he approached the Civil Court by filing Title Suit No. 11 of 1980 seeking permanent injunction restraining the defendant from entering upon the suit land and interfering with this peaceful possession. The said suit was ultimately dismissed whereupon the plaintiff preferred appeal before the Subordinate Judge which also proved futile. He then preferred Second Appeal bearing No. 117 of 1982 before this Court and obtained an interim injunction against the defendant not to remove the trees standing on the suit land. While the aforesaid appeal was pending adjudication, the defendant requested for compromise and suggested the names of Panchas who would arbitrate and settle up the matter. It was agreed upon that both parties would abide by the decision of panchas. cordingly, the panchas.heard both the parties and made an award dated 20.7.1982. The said award was announced orally and copy thereof was sent to each of the parties on the next day. As per the term of the award, defendant would pay a sum of Rs. 25,000/- to the plaintiff within one month whereafter the latter would give up his claim over the trees standing on the suit land, and withdraw the second appeal. The defendant however, failed to make payment as a consequence, the plaintiff filed the present suit for realisation of awarded amount of- Rs. 25.000/-.

(2.) The defendant filed written statement and traversed the allegation made in the plaint. Besides, he further pleaded that the civil court has no jurisdiction to try the suit and is nor authorised to pass a decree based on award. The diefendant also filed separate petition urging that the suit is not entertainable by the civil court as envisaged in Section 32 of the Act. The same being objected to by the plaintiff, learned trial court upon hearing the parties and by referring to paragraphs 4 and 5 of the plaint wherein the plaintiff admitted of there being an arbitration award in respect of the very same, dispute come to hold the suit to be not maintainable being hit by Section 32 of the Act and consequently 'dismissed the suit.

(3.) Mr. N.C. Pati. learned counsel for the plaintiff-appellant in course of argument has raised two-fold contentions: