SUBBAYYA Vs. BHAMIDIPATI VENKATARAMANAYYA

JUDGEMENT

(1.) This is an application under Section 115, Civil Procedure Code, to revise the order of the Subordinate Judge of Bapatla making the award passed by the arbitrator in O.S. No. 76 of 1923 a decree of Court. The plaintiff's suit was for a declaration of his title to the properties in the schedule together with mesne profits. There were nine defendants in the suit. Defendants Nos. 6 to 9 were alleged to be lessees of the properties holding them from the other defendants. A decree for mesne profits was also asked for in the plaint. After the issues were framed in the course of the suit, the plaintiff and defendants Nos. 1 to 5 put in a petition asking the Court to refer the subject-matter of their dispute to the decision of an arbitrator under para. 1, Schedule II, Civil Procedure Code. They "appointed one Suryanarayana of Bezwada as arbitrator, for the purpose of enquiring into and deciding upon the allegations in the plaint and in the written statements" and they undertook that they "shall without filing an appeal etc., abide by the award which the said person shall give either after holding an enquiry or without an enquiry."

(2.) In due course the arbitrator passed an award and an application was made to the Subordinate Judge to make it a decree of the Court. Objections were filed by defendants Nos. 1 to 5. One of them was that the award should not be accepted for the reason that the arbitrator heard evidence of the plaintiff in the absence of the defendants. The learned Judge overruled this and the other objections and passed an order which is the subject-matter of this petition.

(3.) Mr. Govindarajachari for the petitioners i.e., defendants Nos. 1 and 2, argues that the decree and the award should be set aside on the ground that all the parties interested in the dispute were not parties to the reference. This argument is based on the fact that defendants Nos. 6 to 9 were not parties to the reference. It has been decided in a series of cases in this Court: see Polita Pavana Panda V/s. Narasinga Panda 51 Ind. Cas. 155 : 42 M. 632 : 36 M.L.J. 538, Bhagavanulu V/s. Seetharamaswami 73 Ind. Cas. 202 : A.I.R. 1923 Mad. 502 : 44 M.L.J. 359 : 17 L.W. 424 : (1923) M.W.N. 296 : 32 M.L.T. 298, Venkataramanujacharlu V/s. Vasudeva Acharyulu 96 Ind. Cas. 273 : 23 L.W. 769 : (1926) M.W.N. and Rengareddi V/s. Chinasidda Reddi that an award passed on a reference to which fall the parties interested in the dispute are not parties, is illegal and should be set aside. This proposition is not disputed by Mr. Raghava Rao, the learned Advocate for the respondents. But he contends that the petitioners should not be allowed to raise this objection now, because that was not raised before the lower Court and that even if they are to be permitted to raise it in this Court for the first time, a decision should not be given in their favour without calling for a finding from the lower Court on the question whether defendants Nos. 6 to 9 are interested in the dispute in the suit to which they along with others are parties.