Appeal No.443 of 2020 in Application No.7185 of 2019

in E.P.No.17 of 2012 in Arbitration Award No.1 of 2011

and Arb.O.P.SR.No.37500 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 20.06.2023

PRONOUNCED ON : 25.07.2023

CORAM:

THE HONOURABLE MS.JUSTICE R.N.MANJULA

Appeal No.443 of 2020

in Application No.7185 of 2019

in E.P.No.17 of 2012

in Arbitration Award No.1 of 2011

and Arb.O.P.SR.No.37500 of 2023

V.K.John

...

Appellant /

Obstructor

versus

S.Mukanchand Bothra & HUF (Deceased),

Represented by Mukanchand Bothra ,

S/o.Srichand Bothra,

No.44, Veerappan Street,

Sowcarpet,

Chennai - 600 079.

1.M.Karishma Bothra

2.M.Gagan Bothra

3.Sandeep Bothra

...

Respondents /

Decree Holders /

Claimants

[impleaded as per order passed in Appl.No.4189 of 2019 dated 26.06.2019]

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https://www.mhc.tn.gov.in/judis

Appeal No.443 of 2020 in Application No.7185 of 2019

in E.P.No.17 of 2012 in Arbitration Award No.1 of 2011

and Arb.O.P.SR.No.37500 of 2023

4.A.Philip

...

Respondent /

Judgment Debtor/

Respondent

PRAYER: Appeal filed under Order XIV Rule 12 of O.S. Rules, praying to

allow the appeal and set aside the order dated 03.12.2019 passed by the

learned Master in A.No.7185 of 2019 in E.P.No.17 of 2012 in Arbitration

Award No.1 of 2011.

For Appellant

: M/s.Abraham Markoss

for M/s.King and Patridge

For Respondent Nos.1 to 3

: Mr.M.Gagan Bothra

Party-in-Person

For Respondent No.4

: No Appearance

J U D G M E N T

This Appeal has been preferred by the appellant to set aside the order

dated 03.12.2019 passed in Application No.7185 of 2019 in E.P.No.17 of

2012 in Arbitration Award No.1 of 2011.

2. Heard the learned counsel for the appellant and the second

respondent / party-in-person and perused the materials available on record.

The case of the appellant in brief:-

3. The respondents 1 to 3 / decree holders had filed the Execution

Petition for executing the arbitral award dated 21.02.2011 by bringing the

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Appeal No.443 of 2020 in Application No.7185 of 2019

in E.P.No.17 of 2012 in Arbitration Award No.1 of 2011

and Arb.O.P.SR.No.37500 of 2023

suit schedule property for sale; during the said proceedings, the appellant

who is the third party has filed an application in A.No.7185 of 2019 to stop

the sale by claiming that the suit property belongs to him; the arbitral award

has been fraudulently obtained by the decree holders against the fourth

respondent / A.Philip, who is not the owner of the schedule mentioned

property; however the learned Master had chosen to dismiss the application

on the observation that Section 47 C.P.C. is not applicable to arbitral award.

Aggrieved over the same, the appellant has filed this appeal.

4. The learned counsel for the appellant submitted that the schedule

mentioned property originally belonged to one Appu John who was issueless

and died intestate; the appellant being the only surviving legal heir of Appu

John, the award holder ought to have impleaded him in the arbitration

proceedings; the award holder had managed to get the award by impleading

a fictitious person by name A.Philip who was styled as the legal

representative of Appu John; the learned Master failed to appreciate the fact

that the award holder had fraudulently obtained the award without the

knowledge of the appellant and his intention is just to grab the property

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https://www.mhc.tn.gov.in/judis

Appeal No.443 of 2020 in Application No.7185 of 2019

in E.P.No.17 of 2012 in Arbitration Award No.1 of 2011

and Arb.O.P.SR.No.37500 of 2023

through illegal means; the appellant had filed C.R.P.No.676 of 2013 to set

aside the impugned award passed by the sole arbitrator but the award holder

has suppressed the same; the appellant had filed the suit in C.S.No.423 of

1995 for partition of the property and it has been decreed in his favour.

4.1. In fact the ap