NUNE AYYANNAMMA Vs. VALLOORI RAMASWAMI

JUDGEMENT

(1.) The facts are briefly these. The plaintiff instituted a suit to establish her right to the site marked B in the plan and to direct the defendant to close the gateway D opened by him into the said site and also for a permanent injunction to restrain the defendant from opening the gateway. The defendant raised various contentions denying the plaintiff's exclusive right. After the framing of the issues the parties entered into a muchilika Ex. I by which the matters concerned in the suit and other matters in which other parties also were interested were referred to arbitration. The arbitrator made an award Ex. II. The defendant filed it in Court and asked for a decree in terms of it. On objections being raised by the plaintiff an additional issue was raised as to whether there had been a lawful adjustment or compromise. The District Munsif holding that there was one, dismissed the plaintiff's suit. His decision was confirmed in appeal. The plaintiff has now preferred this second appeal against the Lower Court's decree.

(2.) The main point argued by the learned vakil for the appellant is based upon Section 89 of the Civil Procedure Code. According to that section which has been newly introduced in the Civil Procedure Code of 1908 Save in so far as is otherwise provided by the Indian Arbitration Act, 1899 or by any other law for the time being in force, all references to arbitration whether by an order in a suit or otherwise, and all proceedings thereunder, shall be governed by the provisions contained in the second schedule.

(3.) It is argued that in view of the provisions of this section, the Lower Courts ought to have held that the reference to arbitration in a pending suit except in the manner provided by paragraphs 1 to 16 of the second schedule to the Civil Procedure Code is not warranted by law and that, therefore, the award made in this case is invalid and unenforceable. In reply it is contended that an award made without the intervention of Court in a pending suit should be regarded as an adjustment under Order 23, Rule 3 of the Civil Procedure Code and that the words "any other law for the time being in force in Section 89 are wide enough to include such an adjustment.