SUBRAMANIAN (MINOR) AND ORS. Vs. M.P. VASUDEVAN CHETTIAR AND ORS.

JUDGEMENT

(1.) THE question that arises for determination in this revision petition is whether in a petition filed by the arbitrators under Section 14, Arbitration Act (Act X [10] of 1940) for filing an award, persons who were eo nomine, not parties to either the agreement of reference or to the award could be added as necessary parties under Order 1, Rule 10, Civil P. C. On a reference made by three brothers, Subbaratnam Chettiar, Vasudevan Chettiar and Krishnaswami Chettiar to two arbitrators regarding the partition of their family properties the arbitrators gave an award. The award was filed by the arbitrators under Section 14, Arbitration Act, in O. P. No. 90 of 1947, on the file of the Subordinate Court of Trichinopoly. Subbaratnam Chettiar remained ex parte in the arbitration proceedings. He became insolvent since the filing of O. P. No. 9 of 1947, and the Official Receiver of Trichinopoly was brought on record as representing his estate. Subbaratnam Chettiar filed O. P. No. 124 of 1947 in the same Court for setting aside the award on certain grounds. O. S. No. 3 of 1949 was filed on behalf of the minor sons of Subbaratnam Chettiar, who are the petitioners before me, for partition of the joint family properties, wherein they attacked Subbaratnam Chettiar's management of the family properties and also questioned the arbitration and the award on several grounds, one of which was, that their father had no authority to bind the sons by reference to arbitration and also on the ground that all the family members were not parties to the reference. Vasudevan Chettiar applied in I. A. No. 10 of 1949 in O. P. No. 90 of 1947 for adding the petitioners as parties to the said O. P. No. 90 of 1947. He also presented a similar application I. A. No. 44 of 1949 for adding them as parties as well in O. P. No. 124 of 1947. Both the said interlocutory applications were made under Order 1, Rule 10 , Civil P. C. and Section 41, Arbitration Act. The learned Subordinate Judge dismissed I. A. No. 44 of 1949 observing that the application being one for setting aside the award the question whether the award is or is not binding on the sons of Subbaratnam Chettiar was beyond the scope of the said application and whatever may be said as to the propriety, of being made parties to an application to have the award made a decree of Court, they are, however, not necessary parties to O. P. No. 124 of 1947, which was a petition filed by their father for setting aside the award. I. A. No. 10 of 1949 was allowed and the learned Subordinate Judge made them parties stating that in view of the fact that the father was adjudicated insolvent and his sons had filed a partition suit it might be that he was not competent to effectually represent them in the petition and that it was fit and proper that they should be impleaded as parties to the petition so that whatever objections they might have to the passing of a decree on the award might be once for all heard and decided. No revision has been filed against the order in I. A. No. 44 of 1949. The petitioners have presented this revision petition against the order making them parties in I. A. No. 10 of 1949.

(2.) TWO contentions were raised on behalf of the petitioners, namely, that it was not open to a Court on a petition filed under Section 14, Arbitration Act to apply the provisions of Order 1, Rule 10, Civil P. C. and make persons parties to the petition even though they were not parties to the reference and secondly that in any event the petitioners are not necessary parties. Section 41, Arbitration Act of 1940 is as follows :

(3.) ORDER 1, Rule 10, Civil P. C. enables the Court to add parties if their presence is necessary for the determination of the real matter in dispute. Certainly the sons of a party to a reference who are not eo nomine parties to the reference itself are not required in a petition for filing an award for a decree to be passed in terms of the award. What all the Court has to consider is whether it has to modify the award or to remit it and such modification could be only without affecting the decision of the arbitrators. The presence of third parties who are net parties to the reference and who had nothing to do with the proceedings of the arbitrators is really not necessary since the proper persons whose presence would be necessary for consideration by the Court of all the matters that required to be considered before passing a decree are the parties to the reference. Whatever interest the sons may have in the subject -matter of the arbitration that cannot be a ground for making them parties. For instance, in a reference made by the members of a partnership for arbitration or their disputes relating to dissolution and accounts it is found eventually by the award that the partners are liable to discharge certain liabilities due to third parties, the amount of such liabilities being fixed by the arbitrators themselves, it can be said that the creditors of the partnership are interested in the subject -matter of the arbitration but certainly they could not be added as parties to an application filed by the arbitrators under Section 14 on the ground that they are interested in the subject -matter. Since even if added, the creditors would not be competent to question the decision of the arbitrators as to the amount of their liabilities and it would not be competent for the Court to go behind the decision and decide upon the rights inter se between the creditors and the partners. The fact that the petitioners here are the minor sons of one of the parties to the reference would not make much difference since the petitioners would have certain rights against the acts of the father in the management. If supposing the father had incurred a liability which the sons want to attack as an Avyavaharika debt and not binding on them, that matter would not be within the competence of the Court to go into in considering the application under Section 14 of the Act. The petitioners therefore cannot be considered to be the persons whose presence would be required for determining the real question in controversy in the proceeding.