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Nadirshaw H. Contractor Vs. Gajraj Sheokarandas - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 12 of 1941
Judge
Reported in(1941)43BOMLR1006
AppellantNadirshaw H. Contractor
RespondentGajraj Sheokarandas
DispositionAppeal dismissed
Excerpt:
indian arbitration act (ix of 1899), section 15--award--filing of award in court-' enforceable as if it were a decree of the court'--interpretation--execution of award--period of limitation--indian limitation act (ix of 1908), articles 183, 181.;the expression 'enforceable as if it were a decree of the court', used in section 15 of the indian arbitration act, 1899, includes both the manner of execution and the time within which execution must take place.;an award, filed in the high court, can, by virtue of section 15 of the indian arbitration act, 1899, be executed as a decree of the high court at any time within twelve years from its date, under article 183 of the indian limitation act, 1908.;chaitram sagormull v. hardwari mull and co. (1927) i.l.r. 55 cal. 499, followed. - .....the appeal is dismissed with costs.kania, j.4. the narrow point for consideration is whether the words 'enforceable as if it were a decree of the court' in section 15 of the indian arbitration act (ix of 1899) are equivalent to enforceable in the manner of a decree of the court. our attention has been drawn to several cases in which the words 'enforceable in the same manner as' have been construed, and it has been pointed out that by reason of the use of those words an award does not obtain the character of a decree in all respects. we are not oppressed by those decisions because the words actually used here are not 'enforceable in the same manner as' a decree.5. the words 'enforceable as if' are, in my opinion, capable of being read as meaning 'enforceable in the manner and to the.....
Judgment:

John Beaumont, C.J.

1. This is an appeal from a decision of Mr. Justice Somjee given in chambers making absolute a notice under Order XXI, Rule 22, of the Civil Procedure Code, 1908, which empowers the Court to authorise execution of a decree more than two years after the date of the decree. In this case there was) no decree; there was only an award made on July 27, 1929, and filed in this Court on August 16, 1929, under the Indian Arbitration Act, 1899. The present application was made on January 6, 1941, and a notice was issued under Order XXI, Rule 22, of the Civil Procedure Code.

2. The question at issue is, whether the award which has been filed in this Court can be enforced within twelve years of the date of the award or whether the period of limitation is three years; i.e. whether the case falls under art. 183, or art. 181, of the Indian Limitation Act, 1908. Article 183 limits the time for enforcement of a judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction to twelve years from the date when a present right to enforce the judgment, decree or order accrues to some person capable of releasing the right. Under Section 15 of the Indian Arbitration Act of 1899, which is the section applicable to this case, it is provided that an award on a submission, on being filed in Court, shall be enforceable as if it were a decree of the Court. The argument for the appellant is that art. 183 taken by itself does not apply to an award, since it only embraces a judgment, decree or order of a Chartered High Court; and Section 15 does not make an award a decree of the Court, it only provides that it is to be enforceable as if it were a decree of the Court, which expression refers to the manner of execution, and does not relate to limitation. That Section 15 has not the effect of making the award a decree of the Court has been recognised by the Privy Council in Sassoon & Co. v. Ramdutt Ramkissen Das (1922) I.L.R. 50 Cal. 1, P.C., and by this Court in Tribhuwandas Kallindas Gajjar v. Jivanchand (1910) I.L.R. 35 Bom. 196 but neither of those cases was dealing with the question of limitation. We have also been referred to cases on the English Arbitration Act, including De La Bere v. Pearson, Limited [1907] 1 K.B. 483 but the English Act provides for enforcing an award in the same manner as a decree. So also does Section 59(1)(a) of the Bombay Co-operative Societies Act of 1925 which was the statute with which this Court was dealing in Raghavendra v. Industrial Bank, Guledgud (1935) 38 Bom. I.R. 927. The expression 'in the same manner as' would seem to refer to the method of execution and would not, I think, cover the time within which execution must be enforced. But Section 15 speaks of the award being enforceable as if it were a decree of the Court, and it seems to me much easier to read that expression as including both the manner of execution and the time within which execution must take place. It may be said with force that if a decree of the Court is enforceable within twelve years, but an award is only enforceable within three years, then after the expiration of three years, the award is not enforceable as if it were a decree of the Court.

3. The exact point with which we have to deal was decided by the Calcutta High Court in 1927 in Chaitram Sagormull v. Hardwari Mull & Co. (1927) I.L.R. 55 Cal. 499. In that case a bench of the Calcutta High Court held that a decree filed under the Indian Arbitration Act, 1899, was enforceable within twelve years, i.e. that it fell under art. 183 of the Indian Limitation Act. It is obviously undesirable that different High Courts should give a different interpretation to an Act common to the whole of India, and we would not be justified in differing from the High Court of Calcutta on this question, unless we felt certain that that decision could not be reconciled with the plain meaning of the statute. I am certainly not prepared to apply that criticism to the Calcutta case. The point is obviously susceptible of argument, and as the Calcutta High Court in a judgment which discusses the practice in detail has arrived at a particular view as to the construction of Section 15, and the decision has stood for some years, I see no reason why we should differ from it. I think we ought to follow it. The point is not of very much practical consequence because under Section 17 of the new Arbitration Act, awards have to be filed and a decree has to be passed in terms of the award as is the case under Section 16, schedule II, of the Civil Procedure Code, so that this decision will only apply to such cases as still come under Section 15 of the old Act. We think that the decision of the learned Judge was right, and the appeal is dismissed with costs.

Kania, J.

4. The narrow point for consideration is whether the words 'enforceable as if it were a decree of the Court' in Section 15 of the Indian Arbitration Act (IX of 1899) are equivalent to enforceable in the manner of a decree of the Court. Our attention has been drawn to several cases in which the words 'enforceable in the same manner as' have been construed, and it has been pointed out that by reason of the use of those words an award does not obtain the character of a decree in all respects. We are not oppressed by those decisions because the words actually used here are not 'enforceable in the same manner as' a decree.

5. The words 'enforceable as if' are, in my opinion, capable of being read as meaning 'enforceable in the manner and to the same extent as a decree.' I do not think by giving the words that meaning I am doing any violence to the language actually used. To put it in a still different way while the words 'as if' must go with the word 'enforceable', they do not reduce the qualities attachable to the award in enforcing the same as if it were a decree of the Court. One qualification or privilege of a decree of this Court on the original side is that it can be enforced for twelve years. It does not seem to strain the language of Section 15 of the Indian Arbitration Act to say that the words 'as if' would include the quality of being enforceable within the time prescribed by art. 183. The construction put on those words by the Calcutta High Court does not appear to be unduly straining the language, and on the principle that as far as possible in the construction of an Act of Legislature applicable to the whole of India, one High Court should follow the considered opinion of another High Court, the decision under appeal should be upheld and the appeal must be dismissed with costs.


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