JUDGMENT. — The plaintiff in O.S.No. 58 of 1972 on the file of the Subordinate Judge, Kumbakonam, is the appellant. The plaintiff is the mother and the defendant is the widow of one Chinnaswamy Odayar who died intestate on 1st April, 1972, leaving behind, him properties described in Schedules A to D to the plaint. The plaintiff and the defendant would be the heirs of Chinnaswami Odayar under the provisions of the Hindu Succeession Act, 1956, the plaintiff and the defendant having each a half-share in the properties. The plaintiff therefore claimed partition and separate possession of her half-share in all the properties described in the Schedules. In the written statement filed by the defendant it was stated that that there was a mediation on 10th April, 1972, as a result of which the ‘A’ Schedule lands were allotted in favour of the plaintiff and the ‘B’ Schedule and other movables were allotted to the defendant. The decision of the mediators was said to have been engrossed on a paper and the plaintiff and the defendant were said to have agreed and accepted the award. In these circumstances, it was submitted that there was no scope for any partition.

2. The trial Court framed the relevant issues and granted a preliminary decree for partition of the movable properties and directed the plaintiff to bear a half-share of certain debts owed by Chinnasamy Odayar to the Kumbakonam Co-operative Land Mortgage Bank. As regards ‘D’ schedule properties it was found that there was no such property available for partition and therefore the plaintiff’s claim was negatived. The plaintiff’s claim with reference to ‘A’ and ‘B’ Schedules was negatived because of the award passed by the panchayatdars. The plaintiff has filed the present appeal contesting the conclusion of the Court below as regards ‘A’ and ‘B’ Schedule properties.

3. The learned counsel for the appellant submitted that the award had not been filed in Court and no decree had been passed on the basis of the award and that, therefore, the plaintiff’s suit in so far as ‘A’ and ‘B’ Schedule properties are concerned, could not have been dismissed on the strength of such an award. For the respondent, the submission was that the award had been acted upon and that therefore the Court below acted rightly in not granting a decree in plaintiffs favour in respect of those properties.

4. The short question that arises for consideration is whether the award dated 10th April, 1972 and marked as Exhibit B-6 stands in the way of the plaintiff’s claim for partition. Section 32 of the Indian Arbitration Act provides:

“Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be enforced, set aside, amended, modified or in any way affected otherwise than as provided in this Act”

With reference to the awards, there is a special provision in sections 14 to 17. Section 14 enables an award being filed in Court. Section 15 provides that the Court may modify or correct an award so filed and section 16 provides for the remitting of an award so filed, under certain circumstances, for reconsideration by the arbitrators-Section 17 empowers the Court to pass a decree in terms of the award. There was a difference of opinion as to whether an award which had not been filed into Court could be relied upon in defence to an action in the context of the provisions of section 32 and the related provisions of the Indian Arbitration Act. In Suryanarayana Reddi v. Venkata Reddi1, a Division Bench of this Court held that the provisions of sections 32 and 33 of the Arbitration Act did not extend to a defence as opposed to the filing of a suit, and consequently a defendant would not be precluded from putting forward an award which had been fully performed by him in answer to a claim by the plaintiff based on the original cause of action, although such an aw

Click Here to Read the rest of this document