BELAGODUHAL VIRABHADRA GOWD Vs. KALYAN GANGAMMA

JUDGEMENT

(1.) The plaintiff claimed in this suit filed in forma pauperis the properties of one Kalyani Narasappa on the ground that he was an illatom son-in-law of that deceased person. After the suit had been once dismissed and while an application for restoration was pending, there was a reference to arbitration by the parties. The award of the arbitrators passed on 22nd December, 1921, gave the plaintiff 2 acres of wet land and a sum of Rs. 1,500. The Subordinate Judge has found that the plaintiff accepted the award and received Rs. 1,500. Admittedly he signed Ex. VI in which reference is made to the award. It does not, therefore, very much signify that at the final trial of this suit the receipt for the sum of Rs. 1,500 was not forthcoming. Nor does it matter that Rs. 500 went into the hands of one Sakkara Gowd as there is evidence that that sum was paid to him in consideration of his assistance to the plaintiff in settling the dispute. As the decree of the lower Court is in accordance with the award, the plaintiff cannot now claim to get anything more than what was allotted to him through the said mediation of arbitrators.

(2.) The only question of law raised in this case at the hearing of the appeal is that the reference to arbitration out of Court was invalid and cannot constitute an adjustment of the subject-matter of the suit within the meaning of Order XXIII, Rule 3, C.P.C. In this respect I think we should follow the decision of this Court in Chintalapalli Chinna Dorayya V/s. Chintalapalli Venkanna which adopted a decision of the Bombay High Court in Manilal Motilal V/s. Gokaldas Rowji 59 Ind. Cas. 53 : 45 B. 245 : 22 Bom. L.R. 1048. In Peddapalayam Bodachari V/s. Peddapalyam Muniyachari 65 Ind. Cas. 92 : (1921) M.W.N. 756 : 14 L.W. 666 Krishnan and Odgers, JJ., followed with some hesitation Shavaksha Dinsha Davar V/s. Tyab Haji Ayub 37 Ind. Cas. 140 : 40 B. 386 : 18 Bom. L.R. 559 but which was held to be wrong in Manilal Mot Hal V/s. Gokaldas Rowji 59 Ind. Cas. 53 : 45 B. 245 : 22 Bom. L.R. 1048 by Macleod, C.J., who was a party to the earlier decision. Amar Chand v. Banwari Lall 69 Ind. Cas. 808 : 49 C. 008 : A.I.R. 1922 Cal. 401 is a decision of a single Judge of the Calcutta High Court, and in Gajendra Singh V/s. Durga Kumari two learned Judges recently took the same view as that in Manilal Motilal v. Gokaldas Rowji 59 Ind. Cas. 53 : 45 B. 245 : 22 Bom. L.R. 1048 and the dissenting Judge, Mukerji, J., who held that an award was not an adjustment by an agreement of parties within the meaning of Order XXIII, Rule 4 did not have his attention called to the decision of this Court which followed Manilal Motilal v. Gokaldas Rowji 59 Ind. Cas. 53 : 45 B. 245 : 22 Bom. L.R. 1048. Where the parties voluntarily refer their disputes to the decision of mediators without the intervention of a Court and their Vakils present the award of the arbitrators for acceptance by the Court, the proper view appears to be that such an award operates as a compromise of the dispute, and a consent decree may be passed in its terms. In the present case there is all the less reason for not applying the cases which have held differently for the reason that when this reference to Arbitration was made there was no pending suit and, therefore, those cases, which held that reference to arbitration during the pendency of a suit without the intervention of the Court is not valid, do not strictly apply. For these reasons, I would dismiss the appeal and confirm the lower Court's decree with costs. Venkatasubba Rao, J.

(3.) I agree. The point to be decided is, whether the order of the lower Court giving effect to an adjustment between the parties contravenes any provision of the C.P.C. The plaintiff-appellant contends that while a suit is pending there cannot be a reference to arbitration without the sanction of Court and any award made in pursuance of such a reference not sanctioned, is a nullity. The facts are these. The plaintiff filed the suit iii which the appeal arises, for recovery of certain properties and the suit was dismissed for default on the 5 of November, 1921. The plaintiff and the 1 defendant referred their disputes to the arbitration of certain persons on the 22nd of December, 1921, who on the same day passed an award. I shall first assume that on the date of the reference, there was a suit pending. Schedule II to the C.P.C. deals with arbitration under two main divisions. See Ghulam Khan V/s. Muhammad Hassan 29 C. 167 : 29 I.A. 51 : 6 C.W.N. 226 : 12 M.L.J. 77 : 4 Bom. L.R. 161 : 8 Sar. P.C.J. 154 : 25 P.R. 1002 (P.C.). (1). Where in a pending suit the parties desire to have any matter referred to arbitration. Paragraghs 1 to 16 relate to this and all proceedings are under the supervision of the Court. The reference shall be made by an order of the Court. (2) Where the parties without having recourse to any litigation agree to refer their differences to arbitration. This is dealt with under two headings: (a) Where it is desired that the agreement to refer should have the sanction of the Court; in that case, all further proceedings are under the supervision of the Court, paragraphs 17 to 19 deal with this. (b) Where in pursuance of the reference an award has been made and any person then desires to get the award enforced by Court. Paragraphs 20 and 21 relate to this.