Sreedharan Namboothiri vs Jathavedan Namboothiri and Others

K.P. Radhakrishna Menon J.

The appellant and respondents 1 to 3 are the male members of the ancient'' Namboodiri Illom ''Pambummekkat Mana'' The properties of this Mana were partitioned by an award passed under The Arbitration Act in 1961. The award has merged into a decree as is seen from the orders disposing of M. P. Nos. 1/1961 and 1/1963 of the Sub Court, Irinjalakuda. The case of the respondents is that the decree aforesaid has declared the rights of the male members of the Mana to administer the trust ''"created by the award", and its properties by rotation; and as such each one of them is entitled to manage the trust and its properties as and when his turn comes.

The appellant refused to band over the management of the trust and its properties to his successor in terms of the rotation rule and this resulted in respondents 1 and 2 instituting the suit from out of which this C. M. A. arises. In the suit the appellant (defendant) raised a preliminary objection namely, that the suit is barred by Section 32 of The Arbitration Act. The trial court accepted the plea and consequently the suit was dismissed. On appeal the appellate court, by the judgment under attack, has reversed the decree and judgment of the trial court. The operative portion of the appellate judgment reads:-

In the result, this appeal is allowed on the following terms:-The finding of the lower court on issue No.5 is fully set aside. The following additional issue is raised for the consideration of the lower court:

Additional Issue. "Whether the award in this case has been merged into a decree of the court or not?

The case is remanded to the lower court for fresh disposal in accordance with law after giving sufficient opportunities to both sides for adducing evidence also.......

The learned counsel for the appellant-defendant submits that the suit is not maintainable in view of the provision contained in Section 32 of The Arbitration Act. In other words, the suit, inasmuch as the same is to enforce the award is not maintainable, the counsel argues. On the other band the counsel for the respondents contends that Section 32 is not available to be pressed into service because the relief sought for by filing the suit, is not to enforce the award but only to get the rights declared under the decree enforced through court of law.

The question thus arising for consideration is, whether the suit is barred by Section 32 of The Arbitration Act. Section 32 reads:-

Bar to suits contesting arbitration agreement or award.-- Notwithstanding any law for the time being in force, no suit shall lie on any ground, whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or an award, nor shall any arbitration agreement or award be enforced, set aside, amended, modified or in any way affected otherwise than as provided in this Act.

This Section provides that no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or an award; nor shall any arbitration agreement or award be enforced, set aside, amended, modified or in any way affected otherwise than as provided in this Act notwithstanding any law for the time being in force. This Section thus makes it clear that if the validity of an award as such is questioned or is sought to be enforced, set aside, amended or modified the same cannot be had by separate suit but only by filing an application before the court where the award can be filed. An award, if the same is not challenged in the manner provided for u/s 31, 32 and 33 of The Arbitration Act, requires to be made a rule of the court following the procedure prescribed under Sections 14, 15, 16 and 17. That means so far as an award accepted by the parties is concerned, the court where the award is filed (within the meaning of Section 14), shall proceed to pronounce judgment according to the award and a decree will follow the judgment. No appeal however, shall He from the decree except on the ground that it is in excess of, or not otherwise in accordance with the award. A question immediately would arise, what will happen to the award when such a decree is passed. It is by now well established by judicial pronouncements that when once such a decree is passed the award gets merged into that decree and thereafter what is enforced is not the award but only the decree. That means after the passing of the decree no challenge against the award contemplated u/s 32 would be possible. The rights the parties to the award thereafter would agitate, are only the rights that are recognised under the decree. If that be so the bar of suit u/s 32 is not available to be pressed into service in a case where the party who is entitled to the benefit of the decree proceeds to enforce the said decree either by initiating execution proceedings or filing suit to enforce the said right which has been declared by the decree. If the decree is only a declaratory decree, it is fundamental that the same cannot be executed. The party who is entitled to the benefit of such decree therefore necessarily has to institute a suit to get the said right (that is declared) enforced through a court of law. I am fortified in this view by a plethora of decisions. (See Mool chand v. Tola Kam, AIR 1963 Punjab 387, Kailashpati Singhania and Others Vs. Ram Gopal Gupta and Others, and Vineet Kumar v. Bhagwan Dei( AIR 1978 AH 312) etc.

The argument of the learned counsel for the appellant that the suit is barred by Section 32 therefore is liable to be rejected.

The learned counsel for the third respondent submitted that going by the right declared by the decree he is entitled to be in management of the trust and its properties with effect from 20-2-1989. The counsel for the appellant however, argues that the said right cannot be taken cognisance of in view of the order of this court in C. R.P. 581/88 where this court has made the following observations:-

........It is a rotation system as envisaged in the award, When it is to be given effect to, the 1st defendant''s chance would come on 20-2-1989. Hence there is nothing wrong in the order passed by the court below directing status quo as on 16-3-1988 to continue.......

This order, the learned counsel for the third respondent submits, is not binding on the third respondent because he was not a party to the said proceedings. Whether this order (which admittedly is only provisional) will be binding on the parties is a matter that requires to be considered by the trial court, taking into account the proceedings in which the said order was passed. That point therefore is left open.

The C. M. A. is dismissed. No costs.