BADAM SATYANARAYANAMURTHI SON OF VENKATARATNAM Vs. BADAM VENKATARAMANAMURTHI AND ORS.

JUDGEMENT

(1.) THIS appeal has been directed to be posted before a Full Bench of three Judges, because the learned Judges, Happell and Govindarajachari, JJ., who heard it in the first instance, were of the opinion that there was a conflict between the decisions of two division benches of this Court in Bala Pattabhirama Chetti v. Seetharama Chetti, I.L.R. (1894) Mad. 498 and Muthyala Narayanappa v. Muthyala Ramachandrappa, (1930) 60 M.L.J. 676 :, I.L.R. 54 Mad. 469 and that the view taken in the latter decision of the judgment of the Privy Council in Sadiq Husain v. Nazir Begum, (1911) 21 M.L.J. 1151 :, 1911 L.R. 38 IndAp181 :, I.L.R. All 743 seemed to require reconsideration.

(2.) THE appellant Satyanarayanamurthi and Krishnamurthi were brothers. The respondents are the legal representatives of Krishnamurthi who died pendente life. The appellant and Krishnamurthi executed, on March 25, I935, a muchilika agreeing to refer certain disputes between them, relating to their joint cultivation and to a business carried on by them in partnership with a stranger, to the decision of an arbitrator, one Pydah Ramakrishnayya (Ex. P -3). It is common ground that this arbitrator did not make any award. On 7th October, 1938, the two brothers along with another brother named Subba Rao executed another muchilika in favour of a different arbitrator, one Nalam Ramalingayya, referring to him disputes relating to the partition of joint family properties as well as the disputes between the two brothers, viz., the appellant and Krishnamurthi (Ex. P -2). Ramalingayya made an award in respect of the partition of joint family properties on February 28th, 1942, but none in respect of the disputes between the two brothers. On 7th August, 1942, Krishnamuthi filed in the Court of the Subordinate Judge, Coconada, an application under paragraph 17 of Schedule II to the Civil Procedure Code. He prayed that the muchilika, dated 25th March, 1935, in favour of Ramakrishnayya and the muchilika, dated 7th October, 1938, in favour of Ramalingayya be filed into Gourt, and an order of reference be made to the said arbitrators or any other arbitrator who may be chosen by the parties. The application was registered and numbered as a suit, O.S. No. 34 of 1942. On 4th January, 1943, the Subordinate Judge rejected the plaint for non -payment of deficit court -fee. Krishnamurthi died and the present respondents, as his legal representatives, filed an appeal to the District Court, East Godavari. The appeal was dismissed on 21st October, 1944. There was a second appeal to this Court, No. 444 of 1945, which was allowed on 13 th November, 1945 and the suit was remanded to the Court of the Subordinate Judge for disposal on the merits.

(3.) THE question for decision can be formulated as follows: Where two persons agree that the differences between them shall be referred to the arbitration of a named individual and that individual dies before an award is made, has the Court power to appoint another arbitrator in his place? This question must be answered with reference to the provisions of Schedule II of the Civil Procedure Code, 1908, which have been repeated by the Indian Arbitration Act, 1940. Paragraphs 1 to 16 of that schedule relate to arbitration in suits. Paragraphs 17 to 19 relate to agreements to refer made when no suit is pending, and their enforcement by the Court. Paragraphs 20 and 21 deal with arbitration without the intervention of a Court.