Decided on June 22,1972

SUNDRAMMA Respondents


Venkatarama Sastry, J. - (1.) THE plaintiff is the appellant in this Letters Patent Appeal. This appeal arises out of the decision of our learned brother, Sriramulu, J., rendered in C.C.C.A. No. 30 of 1965. THE said appeal was preferred by defendants 1 to 5, 8 and 9 in O.S.No. 57 of 1963 on the file of the court on the II Additional Judge, City Civil Court, Hyderabad filed by the appellant herein. THE suit was for recovery of the possession of the suit property on the ground that the plaintiff Society was the owner of the suit property having purchased the same for the purpose of constructing a private church in the same. THE defendants contested the suit. THEy contended that the property was purchased with the contributions made by all of them, that they entered in the possession of the respective plots and that they continued in possession from 1.4.1947. THEy claimed that the suit was barred by time. In the trial court, the plaintiffs title was established. In regard to the question of limitation, the learned trial judge thought that the period taken by their earlier litigation in respect of the same property has to be deducted under section 14 of the Limitation act. In that view, the suit was decreed for possession against the respective defendants on 31.3.1965.
(2.) AGAINST the said decree, defendants 1, to 5 , 8 and 9 preferred C.C.C.A. No. 30 of 1965. After the passing of the decree and before the filing of this appeal in this court, the parties attempted to settle the matter. Mr. Issac representing the defendants authorised Sri P. B. James to mediate and arrive at a final settlement. Sri James, who was authorised as an attorney to arrive at the final settlement, appointed Mr. K.C. Devadanam as an arbitrator to into the land dispute. Similarly, the plaintiff Society, through its secretary Sri D.S.Jacob, appointed Sri P. Arnold for mediation and to make a final settlement with regard to the suit land. Mr. Arnold also appointed the same gentle man, Sri K.C.Devadanam. Thereafter the parties appeared before the arbitrator and led evidence. After considering the entire evidence that was placed and the submissions made before him, the arbitrator came to a decision and passed an award on 17.5.1965. Both Mr. James and Mr. Arnold representing the parties signed the award in token of their acceptance of the award. It was only later on that the appeal before the High court came to be presented on 11.6.1965. Pending this appeal, the respondents herein (defendants 1 to 6, 8 and 9) filed an application C.M.P.No.8722 of 1965 under Order No. 23, Rule 3, Civil Procedure code praying this court to record the adjustment as evidenced by the award which was treated as a compromise and pass a decree in terms thereof as stated in the petition. The appellant-plaintiff filed a counter on 28.7.1960 and objected to the passing of a decree in terms of the award saying that he never gave his consent. This petition was argued before out learned brother along with the appeal. The appellant-plaintiff objected to the truth of the compromise and also the validity thereof. He questioned the validity on the ground that all the defendants did not agree to the award itself. He also relied upon the proviso to Section 47 of the Arbitration act which reads as follows.: "provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any court before which the suit is pending." The contention of the plaintiff before the learned Judge was that since the members of the Society had withdrawn their consent to the award at the time of considerations of the application for the passing of a decree in terms thereof, the court had no jurisdiction to pass a decree as prayed for by the defendants. The learned judge considered this aspect relying upon the earlier decisions of the Madras High court and of this court and came to the conclusion that the consent that is required is consent to the award and not consent at the time when the application under O,. 23, Rule 3 to record a compromise comes up for consideration. Since the truth and validity of the award were questioned by the appellant, the learned judge called for a finding from the trial court about that matter. In pursuance of that order calling for a finding, the trial court submitted its finding on 28.7.1970. The parties who made a reference to arbitration and the arbitrator were examined and P. Ws. 1 and 2 and D.W.1. The award also was filed into court. The trial court gave a finding that the award was signed by PWs 1 and 2 in token of their having accepted the decision of the arbitrator and they signed the award with the endorsement " agreed" and Exs. B-6 (a) to B-6 (c) were marked in that connection as the signatures of the parties concerned. Though P.W.2 gave evidence that he never consented and wanted to resile from the consent given to the award, the learned trial judge disbelieved his evidence saying that he was interested in supporting the plaintiffs case since he was evicted from the suit land in subsequent suit brought at the instance of some of the defendants. After considering the entire evidence, the trial court found that the reference to arbitration as well as the award given by the arbitrator was true. Regarding the validity of the award, the only ground upon which it was attacked was that all the defendants were not parties to the reference. This was answered by the trial court by saying that the 8th defendant, who was a party to the reference, was the power-of-attorney holder on behalf of all the defendants and the other defendants did not question his authority to make a reference to the arbitrator. In that view, the learned trial judge gave a finding on 28.7.1970 to the following effect: "Thus I find that the award dated 17.5.1965 given by D.W. 1 Devadanam is valid and true and that it has been duly accepted by P. Ws. 1 and 2, representing the plaintiffs and defendants." After the receipt of this finding, the plaintiff filed objections. Our learned brother has considered all the objections and has ultimately come to the conclusion that the award which has been held to be a valid one was consented to by all the parties, and that it can be regarded as an adjustment of the suit under Order 23, Rule 3, Civil procedure code. In that view, our learned brother has directed that the award be regarded as an adjustment of the suit and the appeal be decreed in terms of the award. The decree of the trial court was accordingly set aside. It is against this decision of our learned brother that this Letters Patent Appeal has been filed by the plaintiff.
(3.) MR. Upendralal Waghray, the learned counsel appearing for the appellant, raised before us two main contentions; firstly, that the Secretary of the Society, who appointed MR. Arnold to make a reference has no authority to represent the plaintiff-institution; and secondly, under the proviso to Section 47 of the arbitration act, the consent that is required is the consent at the time of the filing of the compromise into court and the consideration of the said compromise by the court and not any anterior consent given to the award by any one of the parties. We will consider the validity of these contentions seriatim.;

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