Point of Law: Review - When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition

JUDGMENT :

(Prayer: Review Application filed under Order XLVII, Rule 1 r/w Section 114 of Code of Civil Procedure, praying to review the Judgment and Decree of this Court dated 19.07.2019 made in S.A.No.197 of 2019.)

1. This review application has been filed seeking to review the judgment and decree passed by this Court in S.A.No.197 of 2019, dated 19.07.2019.

2. The review petitioners are the appellants in the second appeal. This Court by judgment and decree dated 19.07.2019, has partly allowed the second appeal, setting aside the judgment and decree passed by the first appellant Court in respect of the dissolution of the first defendant's firm, and dismissed the second appeal in respect of other reliefs sought by the petitioners/appellants and thereby confirmed the judgment and decree of the Courts below to that extent. Now to review the said judgment, the present application has been filed.

3. The brief facts leading to filing of this review application is as follows:

(i) The respondents herein are the plaintiffs in the suit in O.S.No.48 of 2006, on the file of the learned Subordinate Judge, Gudiyatham. The suit has been filed for the following reliefs:

"(a) For declaration of title in respect of suit A-schedule property and for the consequential relief of recovery of possession of A schedule property;

(b) for division of B Schedule properties into 4 equal shares and allotment of one such share jointly to the plaintiffs; and

(c) for dissolution of partnership and accounting by appointing a receiver."

(ii) According to the plaintiffs, the father of the plaintiffs, one P.G.Ekambara Mudaliar, was the founder of the first and second defendants partnership firms and he was also a partner along with his four other brothers viz., (i) P.G.Subramania Mudaliar, (ii) P.G.Ekambara Mudaliar, (iii) P.G.Murugesa Mudaliar, (iv) P.G.Narayana Mudaliar and (v) P.G.Murugesa Mudaliar. Both firms were established in the year 1942.

(iii) In the year 1963, one of the partners namely, P.G.Narayanasamy Mudaliar died and the defendants 4, 5 and 6 being legal heirs of P.G.Narayanasamy Mudaliar had taken 1/3rd share of the partnership firm. One P.G.Sivagnanam Mudaliar, the eldest son of P.G.Narayanasamy Mudaliar, was adopted by one P.K.Gangadhara Mudaliar, brother of P.K.Govindappa Mudaliar, subsequently, the said P.G.Sivagnana Mudaliar was also inducted as one of the partners in both the firms.

(iv) In the year 1967, the plaintiff's father P.G.Ekambara Mudaliar died intestate leaving behind his wife, P.E.Padmavathy, and the plaintiffs as his legal heirs to succeed his estate. After the death of Ekambara Mudaliar, the plaintiff's mother was inducted as the senior most partner in both the firms.

(v) Subsequent to the death of Ekambara Mudaliar, another partner namely, P.G.Nataraja Mudaliar retired from the firms, thereafter, yet another partner namely, Murugesa Mudaliar also got retired. Subsequently, in the year 1986, another partner namely, P.G.Subramania Mudaliar, also died, leaving behind the defendants 7 to 10 as his legal heirs.

(vi) After the death of Ekambara Mudaliar, the defendants were giving their share to their mother continuously, and after her death the other partners did not pay the share due to the plaintiffs.

(vii) According to the plaintiffs, the properties mentioned in Item Nos.1 and 2 of suit A-Schedule are separate properties of the plaintiffs' father Ekambara Mudaliar, and the other items in A Schedule properties were the joint properties of P.G.Ekambara Mudaliar and Murugesa Mudaliar. For the sake of convenience, those properties were also used for the activities of the partnership firms with the permission of P.G.Ekambara Mudaliar and Murugesa Mudaliar and they never parted with the ownership of the above properties. Insofar as Item 1 to 7 in B-Schedule properties, they are absolute properties of the 1st and 2nd defendant firms and they were purchased from and out of the income derived from the partnership firms and the plaintiffs are entitle