IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 771 of 2003()
1. K.R. VASUDEVAN, KUNNUMPURATH VELILYIL,
... Petitioner
2. K.R. MOHANAN, DO.
3. K.R. MURALI, DO.
4. K.R. SANTHOSH KUMAR, DO.
5. K. R. THILAKAN, DO.
Vs
1. P.C. LIPI, D/O. CHELLAPPAN,
... Respondent
2. P.C. SUMADEVI, D/O. CHELLAPPAN DO.
3. P.C. KAVITHA, D/O. CHELLAPPAN, DO.
4. P.C. JAYAN, S/O. CHELLAPPAN, DO.
5. P.C. BINU, S/O. CHELLAPPAN, DO.
For Petitioner :DR.V.N.SANKARJEE
For Respondent :SRI.JOBY CYRIAC
The Hon'ble MR. Justice K.T.SANKARAN
Dated :24/03/2008
O R D E R
K.T.SANKARAN, J.
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C.R.P.NO.771 OF 2003
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DATED THIS THE 24TH DAY OF MARCH, 2008
O R D E R
The revision petitioners challenge the judgment dated
29.10.2002 on the file of Sub Court, Cherthala dismissing the
appeal filed by the petitioners against the order dated 5.10.1999
in I.A.No.1282/94 in O.S.No.459/89 of Munsiff Court, Cherthala.
2. The suit was filed for an injunction restraining the
defendants therein from obstructing the plaintiffs from
participating in the affairs of a partnership firm. It is stated that
the petitioners, their late father K.T.Ramakrishnan and the
respondents were carrying on a small scale industry under the
name and style ‘ Vembanad Chemicals’ on partnership. The
partnership was constituted on 1.7.1977 and it was reconstituted
on 18.3.1981. K.T.Ramakrishnan, the predecessor in interest of
the petitionerss was the managing partner. K.T.Ramakrishnan
died on 25.4.1989. The suit was filed thereafter.
3. In the suit, I.A.No.2531/89 was filed by the defendants
(revision petitioners) to stay the suit and to refer the parties to
arbitration, since there was an arbitration clause in the
C.R.P.771/03 -2-
partnership deed. The trial Court dismissed that application. On
appeal as C.M.A.No.27/89, Sub Court Cherthala, allowed the appeal and
referred the parties to arbitration. The plaintiffs filed C.R.P.No.2429/91
challenging the judgment in C.M.A.No.27/89. This Court appointed Shri
V.Sivaswamy as the Arbitrator. On 11.4.1994, the arbitrator passed an
award.
4. I.A.No.1282/94 was filed by the defendants under sections
15, 16 and 30 of the Arbitration Act, 1940 to set aside, remit or modify
the award. I.A.No.1282/94 was dismissed by order dated 5.10.1999.
The defendants challenged that order in C.M.A.No.40/99 before Sub
Court, Cherthala. The appeal was filed under Section 39 of the
Arbitration Act. Before the appellate Court, the revision petitioners
herein produced the judgment and decree in O.S.No.158/94, which was
a suit filed by them for dissolution of partnership. O.S.No.158/94 was
decreed ex parte on 8.3.2001. The appellate Court dismissed the
appeal on two grounds. (1) The appeal is not maintainable under Order
43 Rule 1 of the Code of Civil Procedure against the order in
I.A.No.1282/94. (2) In view of the disposal of O.S.No.158/94, the
prayer sought for in the suit has become infructuous. Therefore, it is
not necessary to consider the appeal preferred against the order in
I.A.No.1282/94.
C.R.P.771/03 -3-
5. The view taken by the Court below is not correct. The
appeal was not filed under Order 43 Rule 1 C.P.C. but it was filed under
Section 39 of the Arbitration Act, 1940. The second ground on which
the appeal was dismissed by the Court below appears to be erroneous.
Even if the suit becomes infructuous in view of the decree granted in
O.S.No.158/94, the appeal filed by the defendants in O.S.No.459/89
challenging the award will not become infructuous. Therefore, I am of
the view that the appellate Court has to dispose of the appeal on the
merits.
For the aforesaid reasons, the judgment passed by the Court
below is set aside and the matter is remitted to the appellate court for
fresh disposal. The parties shall appear before the Court below on
26.5.2008.
K.T.SANKARAN, JUDGE.
dsn