Scope of the provisions of section 47.

The appellants are the plaintiffs, who sued the two defendants on 25th June, 1948, for a permanent injunction restraining them from opening a doorway into an alleged private lane belonging to them and for a mandarory injunction directing the removal of a wall which encroached on their site. This appeal arises out of a reference to arbitration outside court subsequent to the filing of the suit, which degenerated into a regrettable fiasco as between the arbitrators themselves, three of them giving the lie direct to the fourth arbitrator one S. Rattiah. The learned District Munsif accepted the evidence of three arbitrators examined for the plaintiffs as P.Ws.1, 2 and 3 that there was an award in writing signed by all the four arbitrators and decreed the suit in accordance with a copy kept by P.W.1. The finding on their evidence was that Rattiah suppressed the signed award. The learned Subordinate Judge in appeal preferred to believe Rattiah and remanded the suit for fresh disposal.

The relevant facts briefly are these. The suit was preceded by the usual preliminary, canter in the Magistrate’s court. The first defendant, who is a woman, one Venkatachellamma, bought a site next to the plaintiff’s house and started building. The second defendant is said to be some relation of hers but said to be looking after her affairs. When they were obstructed by the plaintiffs, they filed M.C.No.7 of 1948 in the Magistrate’s court and got an ex parte order under section 144, Criminal Procedure Code, on 18th June, 1948. The Plaintiffs retaliated by filing M.C. No. 9 of 1948 for cancellation of this order and followed it up with the suit O.S. No. 362 of 1948. On 17th July, 1948, both parties referred their dispute to the arbitration of four persons by a signed reference Ex. A-1. It is common ground that on 5th August, 1948, the four arbitrators took measurements. According to three of them P.Ws.1 to 3, they were all in agreement as to the terms of the award which was written in Rattiah’s house and the parties who were waiting outside were orally informed. The award was left with Rattiah for further action. Then on 10th August, 1948, the defendants issued a notice Ex. B-1 to the arbitrators not to proceed with the enquiry. On 16th August, 1948, the three arbitrators, P.Ws.1 to 3 appeared in the Criminal Court and filed a memo there Ex. A-6 embodying the terms of their award, alleging that the original signed by all the four arbitrators had been left with Rattiah. The terms of the award were, inter alia that the door way into the lane was to be closed, but the wall alleged to be an encroachment was to be permitted to remain and the defendants were to pay Rs.100 to the plaintiffs by way of compensation. The criminal proceedings were withdrawn and O.P. No. 52 of 1948 was filed in the suit by the "plaintiffs for a decree in terms of the award on 5th October, 1948. This was countered by an application by the defendants to set aside the alleged award. The only witnesses examined were the four arbitrators, three ranging themselves on one side and swearing that they had signed an award, which was left with Rattiah, who stoutly swore to the contrary that the measurements which were begun could not be completed because the parties themselves started disputes which nearly led to their beating each other. He was prepared to swear that he and the other arbitrators went and reported the matter to one Anne Sanjivayya, who advised the execution of a document choosing him as a fifth arbitrator but that this was not done. According to P.W.1, each party deposited Rs. 500. According to Rattiah, R.W.1, Rs. 900 of this deposit is with him and Rs. 100 is still due from the defendants. It would appear that plaintfffs chose two of the arbitrators and defendants, two, a rather unsatisfactory arrangement, but in the present case we have three of the arbitrators including one chosen by the defendants, all sticking together and swearing to all four of them signing an