Patibandala Sitaramaiya vs Patibandala Pichaiya

Arnold White, Kt., C.J.—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.

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.

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.

The defendant''s argument is based on certain words which are to be found at the beginning of the submission to arbitration. These words are :

Both of us and A.E. Andrews have jointly arranged four shares"" and the defendant''s case is that there are four shares in the partnership of which

Andrews has two and he and the plaintiff one each, and that, therefore, his liability to the plaintiff must be assessed upon the footing of his only

being liable to pay Rs. 8,000 and not Rs. 16,000 and consequently the ratio which the plaintiff is entitled to recover against him is one half of Rs.

8,000 and not half of Rs. 16,000. It seems to me impossible to read that into the terms of the submission to arbitration. It must be borne in mind

that the award is impeached upon the ground that the illegality is apparent on the face of the award itself; it seems to me it is impossible to say,

reading the award by the light of the terms of the submission to arbitration, that there is an apparent illegality on the face of the award upon the

ground suggested. I say nothing as to whether or not the defendant can recover as against Andrews by virtue of his partnership agreement with

him. The only question I have to consider is the defendant''s liability to the plaintiff in respect of the advances made by the plaintiff which have been

held to be irrecoverable and I think the District Judge''s view that the relations between the plaintiff and the defendant were those of sub-partners

and that they are liable in equal shares in, respect of those advances is the right view.

The other three grounds I think I may deal with together. No doubt the proceedings before the arbitrator were somewhat of an informal

character. They seem to have consisted chiefly in the examination of accounts. But it seems to me the District Judge was not right in holding that

that was the course to which the two parties to the arbitration - the plaintiff and the defendant - had consented. He holds that the award was made

in accordance with the wish of the parties as evidenced by certain letters which are exhibits C, D, F in the case. It seems clear from the terms of

these letters that defendant was content hat his proceedings should be of an informal character. Having so expressed his consent I do not think it is

open to him now to seek to impeach the award upon the grounds of suggested irregularity such as has been put forward by the learned Counsel for

the appellant.

On these grounds I think the judgment of the court below was right and accordingly I would dismiss the appeal with costs.

Phillips, J.

I agree.