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Narasayya Vs. Ramabadra and ors. - Court Judgment

LegalCrystal Citation
SubjectBanking;Civil
CourtChennai
Decided On
Judge
Reported in(1892)ILR15Mad474
AppellantNarasayya
RespondentRamabadra and ors.
Excerpt:
civil procedure code, section 525 - suit on an award--alternative claim on original consideration--withdrawal of claim on award. - - the first defendant pleaded that, as there was an award, no suit would lie on the merits and contended that the award was bad for misconduct of the arbitrators. from that decree, third defendant alone appealed on the ground that the withdrawal of the prayer for a decree on the award altered the nature of the suit, and that he had always maintained that the plaintiff must succeed or fail on the award. we think that the procedure of the judge was perfectly regular......decree on the award or on the promissory notes. the first defendant pleaded that, as there was an award, no suit would lie on the merits and contended that the award was bad for misconduct of the arbitrators. defendants nos. 2 and 3 pleaded that the award was binding. an issue was accordingly framed as to the validity of the award. at the hearing, the subordinate judge appears to have been of opinion that the award 'could not be held a valid decision for enforcement,' and the plaintiff thereupon was content to withdraw his suit, so far as the award was concerned. first defendant then maintained that plaintiff could only succeed upon the award. the subordinate judge, however, decided the case on the merits and gave the plaintiff a decree against all three defendants. from that decree,.....
Judgment:

1. We think that the preliminary objection raised by the plaintiff (respondent) must prevail and that first defendant, who did not appeal against the decree of the Court of First Instance, is not entitled to argue that the suit ought to have been dismissed. It is then contended for the first defendant (appellant) that the procedure adopted by the District Judge was irregular and illegal. The facts are as follows:--Plaintiff lent money on promissory notes to Defendants Nos. 1 and 2. They, with third defendant, were partners or joint contractors, and the money was advanced for their work. Disputes having arisen, the matters in dispute were referred to arbitrators who made an award. Plaintiff applied to the Court under Section 525 of the Code. First defendant objected and the then Subordinate Judge referred the plaintiff to a regular suit. Plaintiff then instituted the present suit and prayed in the alternative either for a decree on the award or on the promissory notes. The first defendant pleaded that, as there was an award, no suit would lie on the merits and contended that the award was bad for misconduct of the arbitrators. Defendants Nos. 2 and 3 pleaded that the award was binding. An issue was accordingly framed as to the validity of the award. At the hearing, the Subordinate Judge appears to have been of opinion that the award 'could not be held a valid decision for enforcement,' and the plaintiff thereupon was content to withdraw his suit, so far as the award was concerned. First defendant then maintained that plaintiff could only succeed upon the award. The Subordinate Judge, however, decided the case on the merits and gave the plaintiff a decree against all three defendants. From that decree, third defendant alone appealed on the ground that the withdrawal of the prayer for a decree on the award altered the nature of the suit, and that he had always maintained that the plaintiff must succeed or fail on the award. The District Judge took this view, and the first defendant having adduced no evidence as to the misconduct of the arbitrators, amended the decree of the Court of First Instance by giving plaintiff a decree in the terms of the award. We think that the procedure of the Judge was perfectly regular. The plaintiff could not be allowed to withdraw that portion of his prayer which related to the award, so long as any of the defendants objected to his doing so. The decision of the Judge was correct. As to costs, we think that the Judge was right in making first defendant liable for all the costs hitherto incurred, as it was entirely due to his conduct that the suit was instituted and remanded. The second appeal fails and is dismissed with costs, two sets.


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