BADAM SATYANARAYANAMURTHI SON OF VENKATARATNAM Vs. BADAM VENKATARAMANAMURTHI

JUDGEMENT

(1.) This appeal has been directed to be posted before a Full Bench of three Judges, because the learned Judges, Happell and Govindarajachari, JJ., who heard it in the first instance, were of the opinion that there was a conflict between the decisions of two division benches of this Court in Bala Pattabhirama Chetti v. Seetharama Chetti (1894) I.L.R. 17 Mad. 498 and Muthyala Narayanappa v. Muthyala Ramachandrappa (1930) 60 M.L.J. 676 : I.L.R. 54 Mad. 469 and that the view taken in the latter decision of the judgment of the Privy Council in Sadiq Husain V/s. Nazir Begum (1911) 21 M.L.J. 1151 : L.R. 38 I.A.181 : I.L.R. 33 All, 743.(P.C.) seemed to require reconsideration.

(2.) The appellant Satyanarayanamurthi and Krishnamurthi were brothers. The respondents are the legal representatives of Krishnamurthi who died pendente life. The appellant and Krishnamurthi executed, on March 25, I935, a muchilika agreeing to refer certain disputes between them, relating to their joint cultivation and to a business carried on by them in partnership with a stranger, to the decision of an arbitrator, one Pydah Ramakrishnayya (Ex. P-3). It is common ground that this arbitrator did not make any award. On 7 October, 1938, the two brothers along with another brother named Subba Rao executed another muchilika in favour of a different arbitrator, one Nalam Ramalingayya, referring to him disputes relating to the partition of joint family properties as well as the disputes between the two brothers, viz., the appellant and Krishnamurthi (Ex. P- 2). Ramalingayya made an award in respect of the partition of joint family properties on February 28th, 1942, but none in respect of the disputes between the two brothers. On 7 August, 1942, Krishnamuthi filed in the Court of the Subordinate Judge, Coconada, an application under paragraph 17 of Schedule II to the Civil Procedure Code. He prayed that the muchilika, dated 25 March, 1935, in favour of Ramakrishnayya and the muchilika, dated 7 October, 1938, in favour of Ramalingayya be filed into Gourt, and an order of reference be made to the said arbitrators or any other arbitrator who may be chosen by the parties. The application was registered and numbered as a suit, O.S. No. 34 of 1942. On 4th January, 1943, the Subordinate Judge rejected the plaint for non-payment of deficit court-fee. Krishnamurthi died and the present respondents, as his legal representatives, filed an appeal to the District Court, East Godavari. The appeal was dismissed on 21 October, 1944. There was a second appeal to this Court, No. 444 of 1945, which was allowed on 13 th November, 1945 and the suit was remanded to the Court of the Subordinate Judge for disposal on the merits.

(3.) Meanwhile, on 19 July, 1943, Ramalingayya had died. At the hearing of the suit, after remand, an objection was raised on behalf of the appellant that the Court had no power to appoint a new arbitrator in the place of the deceased Ramalingayya. This objection was upheld and the suit dismissed. On appeal, the learned District Judge, East Godavari, set aside the dismissal of the suit, directed the reference to arbitration to be filed and the suit restored to the file and proceeded with. The learned Judge indicated that Ramakrishnayya might be appointed arbitrator or a new arbitrator or arbitrators who may be chosen by both the parties or the Court may itself appoint an arbitrator. The defendant appeals against this order of the learned District Judge.