IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 CRP.No. 1 of 2010 ------------------- AGAINST THE JUDGMENT DTD. 29.5.2009 IN OP.10/2003 of PRL.SUB COURT, KOZHIKODE .................... REVN. PETITIONER/PETITIONER/RESPONDENT: ------------------------------------------ M/S.BRAHMAGIRI B ESTATE, REPRESENTED BY ITS MANAGING PARTNER, MACHEL VAN INGAN, RESIDING AT 'THE LAND' MYSORE - 570019. BY ADV. MR.P.V.JYOTHI PRASAD RESPONDENTS/PETITIONER & LEGAL HEIRS OF THE PETITIONER: --------------------------------------------------------- 1. THOMAS JOSEPH KALATHOOR (DIED), S/O.THOMMAN, MEENACHAL P.O., KOTTAYAM DISTRICT. 2. ALEY KUTTY, W/O.LATE THOMMAN JOSEPH, MEENACHIL P.O. KOTTAYAM. 3. JOSEPH, S/O.LATE THOMMAN JOSEPH, MENACHIL P.O., KOTTAYAM. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.No.1 of 2010 --------------------------------- Dated this the 7th day of January, 2010 O R D E R The revision is directed against the judgment in O.P.No.10 of 2003 which was disposed by a common judgment with another original petition, O.P.No.11 of 2003 by the learned Sub Judge, Kozhikode. Both the original petitions, O.P.Nos.10 & 11 of 2003 relate to an award passed by the arbitrator in an arbitration proceedings before the Sub Court, Kozhikode. O.P.No.10 of 2003 was filed by the respondent for making a decree in terms of the award filed before the court. O.P.No.11 of 2003 was filed by the petitioner to set aside the award. Learned Sub Judge dismissed O.P.No.11 of 2003 and allowed O.P.10 of 2003, under the common judgment directing the making of a decree in terms of the award. Admittedly, petitioner has filed an appeal as provided under Section 39 of the Arbitration Act, 1940 challenging the decision under the common judgment dismissing his petition, O.P.No.11 of 2003 filed for setting aside the award. As against the decision rendered in O.P.no.10 of 2003 under the common judgment of the learned Sub Judge allowing the petition of the respondent, the present revision is filed. C.R.P.No.1 of 2010 2 2. I heard the counsel for the petitioner. 3. The revision has been filed, according to the counsel, as no appeal is provided against the judgment rendered in O.P.No.10 of 2003, the application filed by the respondent for passing a decree in terms of the award. If no revision is filed against that common judgment allowing O.P.No.10 of 2003 of the respondent, according to the counsel, it will constitute res judicata affecting even the maintainability of his appeal preferred against the decision rendered under the common judgment dismissing his application, O.P.No.11 of 2003 moved for setting aside the award. I find no merit in the submission. O.P.No.10 of 2003 was only a request by the respondent asking the court to make the award a decree of the court. The decree on the basis of an award can be made only under Section 17 of the Arbitration Act. Section 17 of the Arbitration Act reads thus: “17. Judgment in terms of award - Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according C.R.P.No.1 of 2010 3 to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with the award.” Petitioner has already challenged the award by filing petition O.P.No.11 of 2003 for setting it aside on the grounds canvassed by him. When he has preferred an appeal against the decision in that O.P. under the common judgment by which making of the decree of the award had been granted by judgment of the court no separate revision as against the allowing the O.P.10 of 2003 is required or warranted. O.P.No.11 of 2003 at the most is only a request asking the court to pass a decree in terms of the award by rendering a judgment as contemplated under Section 17 of the Arbitration Act. Mere statement in the common judgment that O.P.No.10 of 2003 was allowed does not mean that there is a decision in O.P.No.10 of 2003 separately. In fact there is only one judgment in both the petitions and it is not a case of common judgment in two petitions. The mandate covered under Section 17 of the Arbitration Act is that the award has to be made a decree of the court where the court finds no reason to remit the award or part thereof for reconsideration by the C.R.P.No.1 of 2010 4 arbitrator or to set aside the award after the time for making an application to set aside the award has expired and if any such application filed after its dismissal. So in effect, there is only one judgment over the award and not a common judgment separately allowing O.P.No.10 of 2003 and dismissing O.P.No.11 of 2003. What has been done under the judgment as contemplated under Section 17 of the Arbitration Act is making a decree of the award by the court. Since that judgment has been challenged separately under Section 39 of the Arbitration Act as stated earlier no separate revision as if there is a separate judgment allowing the request of the respondent in O.P.No.10 of 2003 is necessary. So much so, the revision filed by the petitioner is found unnecessary and it is closed reserving the right of the petitioner to pursue the challenges against the award in his appeal which is stated to have been preferred against the judgment of the court below. S.S.SATHEESACHANDRAN, JUDGE. bkn/-