IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 CRP.No. 771 of 2003() --------------------- CMA.40/1999 of SUB COURT, CHERTHALA OS.459/1989 of PRL.MUNSIFF COURT, CHERTHALA (IN IA 1282/1994) .................... REVN. PETITIONER: APPELLANTS/PETITIONERS/DEFENDANTS: ---------------------------------------------------- 1. K.R. VASUDEVAN, KUNNUMPURATH VELILYIL, KAYIPPURAM, THANNEERMUKKOM SOUTH VILLAGE, CHARAMANGALAM MURI, MUHAMA P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT. 2. K.R. MOHANAN, DO. 3. K.R. MURALI, DO. 4. K.R. SANTHOSH KUMAR, DO. 5. K. R. THILAKAN, DO. BY ADV. DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN SMT.R.UDAYA JYOTHI SRI.M.VINOD RESPONDENTS /RESPONDENTS/ RESPONDENTS/PLAINTIFFS: ------------------------------------------------------------------- 1. P.C. LIPI, D/O. CHELLAPPAN, PADINJARACHIRAYIL, KAYIPPURAM, THANNERMUKKOM SOUTH VILLAGE, CHARAMANGALAM MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 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. BY ADV. SRI.JOBY CYRIAC THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:. K.T.SANKARAN, J. ---------------------------------- C.R.P.NO.771 OF 2003 -------------------------------------------- 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