IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: AT HYDERABAD FRIDAY, THIS THE THIRTIETH DAY OF JULY TWO THOUSAND AND TEN PRESENT: HONOURABLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No.31 OF 2010 Between: Maduri & Molugu, a firm represented by its Managing Partner Maduri Rajeswar and others …. Petitioners AND Molugu Srinivasulu S/o. Molugu Venkataiah and others …. Respondents HONOURABLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No.31 OF 2010 ORDER: The first petitioner is a partnership firm. It was established in the year 1971 and was reconstituted on 08-01-1980. Petitioners 2 and 3 and respondents 1 to 3 are its partners. Disputes arose between the partners of the firm. They were referred to an Arbitrator in the year 1992. The Arbitrator passed an award dated 22-11-1992. O.S. No.19 of 1994 was filed by the Arbitrator in the Court of the III Senior Civil Judge, City Civil Court, Secunderabad under the Arbitration Act, 1940 (for short, ‘Old Act’) with a prayer to make the award, the Rule of the Court. The said suit was dismissed. 2. The petitioners filed O.S. No.165 of 1996 in the Court of the III Senior Civil Judge, City Civil Court, Secunderabad against respondent Nos.1 to 3, for the relief of dissolution of the firm. The trial Court appointed the 4th respondent, a retired District Judge, as an Arbitrator. Taking into account, the scope of controversy between the parties, respondent No.4 framed 5 issues and 2 additional issues for his consideration. Through his award dated 25-10-2001, respondent No.4 answered issue Nos.1, 2, 5 and additional issue No.1 in favour of the petitioners and issue Nos.3, 4 and additional issue No.2 in favour of respondent Nos. 1 to 3. The petitioners filed O.S. No.151 of 2002 under the relevant provisions of the Old Act, not only claiming the relief of making the award, in so far as it is in their favour, as Rule of Court, but also for setting aside the award, to the extent, it has gone against them and in favour of respondent Nos.1 to 3. Claiming exactly the opposite relief, the respondent Nos.1 to 3 filed O.P. No.11 of 2001 in the same Court. Through a common judgment dated 30-03-2007, the trial Court decreed O.S No.151 of 2002 and allowed O.P. No.11 of 2001 confirming the award, except on certain minor aspects. 3. Respondents filed I.A. No.472 of 2008 under Order XXXIV Rule 2 read with 151 CPC and under Section 49 of the Partnership Act, with a prayer to pass final decree, for the amounts mentioned in the statement of accounts appended to the petition, as Annexures 1 and 2. Through its order dated 07-08-2009, the trial Court passed a final decree in favour of respondent Nos.1 to 3 and against the petitioners for a sum of Rs.1,59,22,393/-. The same is challenged in this revision petition. 4. The petitioners contend that the 4th respondent was appointed by the trial Court after the Arbitration and Conciliation Act, 1996 (for short, ‘New Act’) came into force and that there was absolutely no legal or factual basis for respondent Nos.1 to 4, to initiate the proceedings under the Old Act. They contend that the Old Act stood repealed by the subsequent enactment and the proceedings thereunder, are totally untenable. Another contention of the petitioners is that the concept of final decree is unknown to Arbitration proceedings and the trial Court committed error in passing the final decree. 5. Sri G. Anandam, learned counsel for the petitioners submits that though an Arbitrator came to be appointed under the Old Act on earlier occasion and an award was passed on 22-11-1992 under the Old Act, O.S. No.165 of 1996 filed by the Arbitrator was dismissed and with that, nothing survived thereafter. He submits that appointment of the 4th respondent was under the New Act and the proceedings initiated under the Old Act either for setting aside part of the award or for making the other part, as Rule of Court cannot be maintained. Learned counsel further submits that the award was incomplete inasmuch as it left much to be done through a separate exercise and the concept of final decree is alien to the proceedings in relation to an award. 6. Sri T. K. Sridhar and Sri T. Surya Satish, learned counsel for the contesting respondents, on the other hand, submit that the dispute between the parties arose much before the New Act came to be enacted, so much so, an award was passed on 22-11-1992 under the Old Act. According to them, filing of O.S. No.165 of 1996 is nothing but continuation of the pursuit of redressal for the disputes that constituted the subject matter of the award, and by operation of Section 85 (2) of the New Act, the old enactment continues to govern the dispute between the parties. The learned counsel further submit that the award dated 25-10-2001 passed by the 4th respondent left the calculation and ascertainment of profits etc., to be done separately and I.A No.472 of 2008 is filed only for that purpose. 7. The background in which, I.A No.472 of 2008 came to be filed, has been mentioned in brief, in the preceding paragraphs. The application was filed under Order XXXIV Rule 2(c) CPC, which applies to mortgage suits. It is almost for the relief of final decree. The petitioners challenged the order passed by the trial Court in the I.A. on two principal grounds, namely, that (a) the award, which is sought to be enforced through the petition, was passed after the New Act came into force, whereas the proceedings for enforcement thereof were initiated under the Old Act, and (b) an application for final decree is not maintainable since there does not exist any preliminary decree. 8. The first ground urged by the petitioners would have bearing upon the very jurisdiction of the trial Court to have entertained the O.S. No.151 of 2002 and O.P. No.11 of 2001 filed by the parties herein, be it for enforcement of award dated 25-01-2001 passed by the 4th respondent or for setting it aside. Had it be a case where the disputes between the parties landed before the Court or in the hands of the 4th respondent, for the first time, after the New Act came into force, the proceedings referred to above would certainly have become untenable. In such case the award could have been enforced or assailed, as the case may be, only by having recourse to the provisions of the New Act. 9. That, however, is not the case. Firstly, O.S. No.165 of 1996 was filed, on 05-06-1996 i.e., before the New Act came into force and the 4th respondent was appointed as arbitrator, in those proceedings. Secondly, it is a matter of record that disputes between the parties were referred to an Arbitrator in the year, 1992, when the Old Act was in force, so much so, that an award was passed on 22-11-1992. It is a different matter that O.S. No.19 of 1994 filed by the Arbitrator for making his award, the Rule of the Court, was dismissed and the proceedings did not spill over in the form of appeal or revision. However, it is almost in continuation of those proceedings, that O.S No.165 of 1996 came to be filed by the petitioners. Specific reference was made to the unenforced award dated 22-11-1992. Respondent No.4 was appointed in this suit, as an Arbitrator. In his award dated 25-10-2001, respondent No.4 gave elaborate reference to the award dated 22-11-1992 and the proceedings that were initiated thereon. 10. Section 85 of the New Act no doubt repealed the Old Act. However, sub-Section (2) thereof saves the proceedings that have arisen under the Old Act and such proceedings would be governed by the provisions of the Old Act itself. Section 85 of the New Act reads as under: “85. Repeal and savings:--- (1) The Arbitration (Protocol and Convention ) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed. (2) Notwithstanding such repeal,-- (a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force. (b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act.” 11. Therefore, the plea raised by the petitioners in this regard cannot be accepted. 12. There is another angle, from which, the matter can be examined. The agreement between the parties to refer the disputes to Arbitration came into existence when the Old Act was in force. In a way, the appointment of the 4th respondent can be traced to that. Further, after the 4th respondent passed the award dated 25-01-2001, the petitioners on the one hand and respondent Nos.1 to 3 on the other filed proceedings in the trial Court not only for making the award, the rule of the Court in so far as it supports them; but also to set aside that part of it, which goes against them. Both of them invoked the provisions of the Old Act. No objection was raised for invocation of the Old Act in these proceedings. Being parties to such proceedings, the petitioners cannot object the same at this stage. I n DEPUTY MANAGER (ENGG.) FOOD CORPORATION OF INDIA v. SATYANARAYANA CONTRACTORS COMPANY[1], a Division Bench of this Court took that view. 13. Coming to the second ground urged by the petitioners, it is no doubt true that the occasion to file an application under Order XXXIV CPC would arise only when there exists a preliminary decree. In the instant case, the decree passed by the trial Court is in terms of the award. Normally, one does not come across the preliminary and final stages in the matter of enforcement of awards. Obviously, on account of complications involved in the accounting process in the dispute between the parties, 4th respondent concentrated on broad aspects of the disputes and rendered his award on them. He formulated certain aspects relating to accounts and left them to be worked out by experts in accountancy. Viewed in this context, the award and the resultant decree passed by the trial Court, partake the character of a preliminary decree. Respondent Nos.1 to 3 placed the relevant material before the trial Court, touching on the accounts and prayed for passing a final decree. In other words, the relief that was granted by 4th respondent and thereafter, by the trial Court, was translated in terms of money. The trial Court gave ample opportunity to the petitioners and passed the order in the form of a final decree. Hence, it cannot be said that there exists anything extraordinary, in filing of the I.A. or the order passed therein. 14. It is not out of place to mention certain provisions of Order XX CPC, which deals with the judgment and decree. The order prescribes the nature of decrees that are to be passed in different kinds of suits. Rule 17 of Order XX CPC reads as under: “17. Special directions as to accounts:--- The Court may either by the decree directing an account to be taken or by any subsequent order give special directions with regard to the mode in which the account is to be taken or vouched and in particular may direct that in taking the account the book of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained with liberty to the parties interested to take such objection thereto as they may be advised.” 15. From this, it becomes clear that even if a suit is not the one for partition or for redemption of mortgage, where a preliminary decree and thereafter a final decree must be passed, the power of the Court to undertake the exercise, similar to the one of passing final decree always rests with it, in case the situation warrants. The exercise of calculation and accountancy has been extensively undertaken at various stages for the past several decades. Learned counsel for the petitioners is not able to point out any serious or material defect in the order passed by the trial Court. Therefore, no exception can be taken to it. 16. Both the learned counsel have relied upon certain other precedents also in support of their respective contentions. However, this Court is of the view that it is not necessary to refer them in detail since the law is fairly well settled on the two questions that were examined. 17. For the foregoing reasons, the Civil Revision Petition is dismissed. There shall be no order as to costs. ____________________ L. NARASIMHA REDDY, J Date:30-07-2010. KTL L.R. copy to be marked. [1] 2009 (6) ALD 500 (DB)