PATIBANDALA SITARAMAIYA Vs. PATIBANDALA PICHAIYA

JUDGEMENT

(1.) A preliminary objection was taken in this case on the ground that no appeal lay. The appeal is from the judgment of the District Judge which directs that a certain award shall be filed and gives the plaintiff a decree in accordance with that award. Section 21, Clause (1) - of the arbitration section in the second schedule to the Code - provides "where the court is satisfied that the matter has been referred to arbitration and that an award has been made thereon and where no ground such as is mentioned or referred to in para 14 or para 15 is proved the court shall order the award to be filed and shall proceed to pronounce judgment according to the award." Then Sub-section 2 : "Upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except in so far as the decree is in excess of or not in accordance with the award." Consequently qua decree it seems to me the contention that no appeal lies is well founded. Then we have Section 104, Sub-Section (1), Clause (f) : "An appeal shall lie from an order filing an award ". It is quite true that the memorandum of appeal is framed as if it were an appeal against a decree and the stamp is paid on the footing that it is an appeal against a decree, and under the second schedule there is no appeal against a decree unless it is in excess of or not in accordance with the award. But the judgment appealed from is not only a decree but it is also an order that the award be filed; and I think we may treat this appeal, although the appellant himself does not so treat it in the memorandum of appeal, as an appeal against an order filing an award. Therefore, the preliminary objection must be overruled. It is therefore open to the appellant to impeach the award on any ground which it is open to him to take in opposing an application that an award be filed.

(2.) The learned Counsel for the appellant impeaches this award on four grounds. He says (1) that the matter which was determined was not included in the submission to arbitration; (2) that the award was given without notice to the defendant; (3) that inquiries were made behind the back of the defendant; and (4) that there is illegality on the face of the award.

(3.) Now I take the fourth ground upon which the award is attacked first as that seems to me the most important. The total amount of the irrecoverable items as found in the award is, to put it in round figures, Rs. 16,000. The question is what proportion of that amount is the plaintiff entitled to recover from the defendant. The plaintiff says he is entitled to recover the sum of Rs. 8,000, that is half of Rs. 16,000, on the ground that as between him and the defendant there was a sub-partnership with regard to the amounts advanced by the plaintiff.