1. This is an appeal from a decree passed in terms of an award. The facts are as follows :
2. The parties entered into an agreement to refer the disputes regarding Krishna Oil Factory to the arbitration of two persons Sri Bankey Lal and Sri Hira Lal, vakils of the civil courts, Aligarh. The agreement is dated 12-3-1948 and is Ex. 1. Thereafter Shri Ram and Shripat Singh, two of the parties, entered into an agreement on 27-8-1948 to refer another dispute between them relating to an amount of Rs. 4,000/- to arbitration. Under this agreement they appointed the very same arbitrator.
The arbitrators entered upon the reference towards the end of October 1948. Although the arbitrators entered upon the reference very late so far as the first agreement was concerned, none of the parties objected to the arbitrators doing so. The arbitrators gave a joint award on both of the references. This indeed seems to have been the intention of the parties, as it has been contended before us that the arbitrators should not have given a joint award. The date of this award is 15-11-1948.
3. On 3-1-1949 Shri Ram appellant filed a suit (No. 6 of 1949) in the court of the Civil Judge Aligarh, for supersession of the arbitrators on the ground that they were unduly delaying the giving of the award--it was alleged by Shri Ram that the award had not been given till then--& for the appointment of other arbitrators and for the reference of the dispute to them.
4. On 12-2-1949 Shripat Singh, Autar Kishen and others, respondents to the present appeal, filed another suit (No. 19 of 1949) for passing a decree in terms of the award which had already been given by the arbitrators on 15-11-1948. The written statements of the opposite parties in both the suits were. in the same terms as their plaints in the two suits:
5. The court framed issues, consolidated the two suits and tried them together. During the course of the trial the award was filed in court by one of the arbitrators on 2-12-1949. The Court below held that the award had been duly made and that there was no flaw in it. Ultimately the count dismissed the appellant's suit and decreed the respondents' suit and passed a decree in terms of the award on 9-12-1949. Against this decree the plaintiff of suit No. 6 of 1949 has come up in appeal. To the appeal he has attached the decrees passed in both the suits.
6. A preliminary objection to hearing of this appeal was made on behalf of the respondents. The objection was that the appeal does not lie or is barred by res judicata because an appeal against the judgment and decree in one suit had been filed and no appeal had been filed from the judgment and decree in the other suit. It was urged that if this appeal is decreed conflicting decrees would come into existence and therefore the appeal was hot maintainable.
7. We do not think that this preliminary objection has any force. When two suits have been consolidated and tried together and disposed of by one judgment, a party may file an appeal from the judgment and decree in one suit and if he does not file another appeal from the decree in the other suit it cannot be said that his appeal is not either maintainable or that it is barred by res judicata. This is now the settled law, vide Narhari v. Shankar, AIR 1953 SC 419 (A).
8. On the merits learned counsel for the appellant has urged that neither his suit (No. 6 of 1949) nor the respondents' suit (No. 19 of 1949) were 'maintainable as framed as they were in violation of the provisions of the Arbitration Act. We think that this contention is right. Section 32, Arbitration Act (hereinafter, called the Act), provides :
'Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act.'
9. Sections 14 to 17 of the Act read with the relevant provisions of the Limitation Act lay down the procedure for setting aside, amending or modifying an award or to have a decree passed in terms thereof. When the arbitrators have made an award it is their duty to sign it and give notice to the parties of the making and signing thereof, and then the arbitrators of their own accord or at the request of any party to the arbitration agreement may file the award in court.
If they do not file the award in court then any person who is a party to the arbitration agreement may make an application to the court within 90 days of the receipt of notice of making of the award to direct the arbitrators to file the award in court and the court thereupon will direct the arbitrators to file the award in court. When the arbitrators have filed the award in court the court will give notice to the parties of the filing of the award.
Thereafter within 30 days of the receipt of such notice any party can make an application for setting aside the award. Then the court will consider this application and either remit the award to the arbitrators for reconsideration or set aside the award or pronounce judgment according to the award and pass a decree in terms of the award (Section 17).
10. Thus where a party desires to have a decree passed in terms of an award he has to make an application under Section 14. The prayer in this application should be merely that the arbitrators be asked to file the award in court. This application must be made within 90 days of the date on which he received notice of the making of the award. No such application can be made after the expiry of this period. No suit lies for having a decree passed in terms of the award.
Similarly no suit lies for declaring that the award is not binding or is otherwise invalid. This relief may be obtained by means of an application made within 30 days of the receipt of notice for the filing of the award in court under Section 14, or if no such notice is issued, by means of an application under Section 33 of the Act. Both the suits filed in the court below were therefore misconceived.
11. If an objection had been taken by the appellant in the court below that the respondents' suit (No. 19 of 1949) was not competent because an application should have been made under Section 14 of the Act, the objection could have been met by means of a simple application asking for an amendment of the plaint and treating it as an application under Section 14 of the Act.
If the award was made on the 15th of November 1948 the plaint was obviously filed within time as it was filed on 12-2-1949. An application for amendment of the plaint in these circumstances would have been allowed. Had this been the only irregularity in the proceedings of the court below, we would not have interfered with the order of the court below.
But there was another irregularity committed in the court below. The award was filed in court on 2-12-1949 and the decree was passed on 9-12-1949. Thirty days time as required by law was not allowed to elapse between the filing of the award and the passing of the decree. The decree passed by the Court below has therefore to be set aside.
12. We therefore allow this appeal, set aside the decree of the court below and remand the case to that court with the direction that it shall allow the appellant to file an application within thirty days from to-day to set aside the award. The court will then consider this application and. treating the plaint as an application under Section 14 of the Arbitration Act, decide the matter according to law.
The necessary amendments in the plaint will be allowed to be made by the court below so that it may be an application under Section 14 of the Arbitration Act. As the objection regarding the defect in the proceedings was not raised by the appellant in the court below and was raised for the first time in this Court, we direct that the respondents shall have their costs of the court below from the appellant as ordered by the Court below. The costs of this appeal and of the proceedings here. after shall abide the result.
13. The record of the case shall be sent downto the court below immediately.