PARAMANANDA PANIGRAHI AND ANR. Vs. TILOTTAMA PANIGRAHIANI AND AFTER HER RUKMINI PANIGRAHIANI
HIGH COURT OF ORISSA
Tilottama Panigrahiani And After Her Rukmini Panigrahiani
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Panigrahi, J. -
(1.) THESE two appeals, along with First Appeal No. 53 of 1948 arise out of three suits filed by the sister -in -law and the daughter -in -law of the First Appellant. Original Suit No. 14 of 1945 was filed by Tilottama (sister -in -law of Appellant No. 1) for maintenance; Original Suit No. 15 of 1945 was filed by Tilottama and Rukmini (the daughter -in -law of Appellant No. 1) for possession of a house for their separate residence; and Original Suit No. 16 of 1945 was filed by Rukmini for recovery of maintenance and the price of some gold alleged to have been forcibly taken away by the said Appellant. All the three suits were filed in the court of the Agency Subordinate Judge and tried together. Three appeals were consequently filed by the Defendants against whom decrees were passed in all the three suits.
Of these three appeals, first appeal No. 53 of 1948 abated on the death of Tilottama as Appellant No. 1 is the only surviving reversioner on the death of the Respondent.
(2.) THE claim made on behalf of Rukmini, Respondent in First Appeal No. 52 of 1948 is that her husband Lakshminarayana died undivided with his father, Paramananda (Appellant No. 1) and that she filed a suit for maintenance against her father -in -law. She also filed a suit, as stated above, for the recovery of some gold alleged to have been forcibly taken away by the Appellant. These suits were however withdrawn and the parties referred the dispute to the arbitration of one D.S. Prakasa Rao of Parvatipur. The award passed by the arbitrator on 20th May 1942, which is marked Ex. 1, directed the payment by the Defendant of 8 tolas of gold, or its money equivalent to the Plaintiff. It also directed the payment of 36 puttis of paddy every year to the Plaintiff towards her maintenance. The award had further contained directions with regard to the payment of maintenance to Tilottama but since she is dead it is not necessary to refer to that portion of the award. Rukmini alleged in her plaint in one of the suits that she was entitled to separate residence under the Hindu Law, as well as under the award passed by the arbitrator and claimed possession of the house from the Defendant. In the other suit she claimed recovery of the price of gold as well as a sum of Rs. 540/ - towards arrear maintenance amounting to 8 graces and 18 puttis for three years subsequent to the date of the award. The plaint had also included a further claim of Rs. 525/ - towards arrear maintenance for a period of three years prior to the award, bob this claim was negatived by the court below as being outside the terms of the reference made to the arbitrator and this decision has now become final. The only point for consideration in these two appeals is whether the Plaintiff is entitled to recover possession of the house and to claim the value of gold as well as arrears of maintenance for three years proceeding the institution of the suit. Learned Counsel for the Appellants contended firstly that the suit is not maintainable as it is barred by Section 32 of the Indian Arbitration Act (X of 1940); secondly that since no evidence was adduced that the Plaintiff's gold had been forcibly removed by the Defendant the trial court should have rejected that claim; and thirdly, that the rate of maintenance claimed is excessive and should be reduced to 12 puttis per year.
(3.) SO far as the first contention is concerned learned Counsel relied upon a decision reported in Moolchand v. Rashid Jamshed and Sons, A.I.R. 1946 Mad 346. That case arose out of a suit based upon an award and asked for a decree in term of that award. The Plaintiffs therein averred that the award had become final, conclusive and binding on the parties. It was admitted in that page that the award had not been made a rule of court as provided in Section 33 of the Arbitration Act. Their Lordships of the Madras High Court held that the suit was barred by the provision of Section 32 of the Act as the scheme of the Act was to prevent parties to an arbitration agitating questions relating to the arbitration in any manner other than that provided by the Act. It was further observed in that case that the suit which the Appellants filed clearly raised a question with regard to the existence and validity of the award and that such a suit is expressly barred by Section 32. Learned Counsel, therefore, contended that the units out of which the present appeals arise are also of the nature of suits wherein the existence and validity of the award are put in issue and should therefore, be held to be barred by Section 32. We are unable to accept this contention as the plaints do not make any averment to the effect that the award has become final and conclusive between the parties and that the parties' rights are to be governed by the Award. On the other hand, the plaints clearly recited that the Plaintiff is entitled, under the Hindu Law, to separate residence and maintenance, and the claim is made under that law. The only fact to prove which the Plaintiff relies on the award is the rate at which she should be granted maintenance. Even apart from the award it wag open to the Court to fix a rate of maintenance, and if the Plaintiff choose to claim maintenance all a particular rate as fixed by the arbitrator that can only be regarded as an item of evidence In support of the Plaintiff's claim. I should like to refer here to a later decision of the Madras High Court reported in Suryanarayana v. Venkata Reddi, A.I.R. 1948 Mad 436 which explains the scope of Sections 32 and 33 of Arbitration Act and, if I may say so with respect, I am in entire agreement with that decision. As their Lordships have pointed out in that case the inhibition in Section 32 is confined only to a plaint by which a decision upon the existence effect or validity of an award is sought. That was a case where the Plaintiff filed a suit for partition after his failure to work out his rights through an award. The Plaintiff alleged several grounds of invalidity against the award nonetheless partition was bought on the ground that he was entitled, under the Hindu Law to partition. The Court held that such a suit was not one in which the existence effect or validity of the award was to be decided. Oar attention has also been drawn to a decision of the Calcutta High Court reported in Munshilall v. Modi Brother : 51 CWN 563 where the interpretation of these Sections came in for consideration. Das, J. held that the purpose of the Sections was to prevent the filing of suits to contest the validity of an arbitration agreement or award, or to delay the enforcement thereof. But a suit upon an award in the sense of a suit to enforce the award does not come within the mischief which is sought to be removed or remedied by these sections. Ordinarily, a person in whose favour an awards wade will prefer to adopt the more expeditious procedure laid down in the Act for enforcing the award if the same be applicable. But I can see no reason why such a person should not be allowed to proceed by way of a regular suit to enforce the award a procedure which was well known and recognised and which led to no lordship. It is, therefore, beyond controversy that; a suit to enforce a claim arising under an award is entertainable and what is prohibited is a suit to obtain a decision about the validity or effect of an award. As I have already pointed out the present suits are not of the kind which come within the scope of the prohibition enacted in Section 32 of the Indian Arbitration Act. The first contention has therefore no substance.;
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