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Dwarka Das Vs. Pearay Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation ; Civil
CourtAllahabad
Decided On
Reported inAIR1949All234
AppellantDwarka Das
RespondentPearay Lal and ors.
Excerpt:
- - (4) that the application was bad for non-joinder of necessary parties. sections 14 and 17, arbitration act, taken together clearly indicate that what the court has to do is simply to give notice to the parties that an award has been filed in court. those rulings, therefore, are no longer good law......article 178 applies to an application under the arbitration act 'for the filing in court of an award.' limitation for filing such an application is 90 days from the date of service of the notice of the making of the award. now, such an application must be by a party to the award and not by the arbitrator. section 14 runs as follows:(1) when the arbitrators or umpires have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award.(2) the arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the court and upon payment of the fees and eharge3 due in.....
Judgment:

Agarwala, J.

1. This is an appeal against an order of the Additional Civil Judge, Mathura, rejecting the objections of the appellants to the passing of a decree in terms of an award. Four parties viz., Pearey Lal and his son Kishen Prasad, Jagannath and his son Gopal Prasad, Dwarka Prasad (alias Dwarka Das) and his minor sons Lachhman Prasad and Sanwal Prasad. Sri Nath and his minor son Sita Ram entered into an agreement to refer their disputes to the arbitration of one Bishambhar Nath. This agreement is dated 2nd February 1944. In pursuance of this reference to arbitration Bishambhar Nath gave an award on 2ndAugust 1944, and he also Informed the parties of his having done so. Later. an, Bishambhar Nath took proceedings under Section 14, Arbitration Act, on 31st August 194S. He made an application to the Court stating that the disputes between the parties having been referred to him for arbitration he had given an ward and had informed the parties also about it that he was filing the award in Court. In this application he named four parties, Lala Pearey Lal for self and as karta of his joint family, Lala Jagannath for self and as karta of his joint family, Lala Dwarka Das for self and as karta of his joint family and Lala Sri Nath for self and as karta, of his joint family.

2. When the award was filed in Court the Court issued notices to these four parties and fixed 2nd November 1946, as the date in the case. This notice was served on Dwarka Das appellant on 22nd September 1943. Sri Nath, 4th party, made an application to the Court stating that the arbitrator had filed the award at his request and that a decree be passed in terms of the award. Dwarka Das, however, objected to the passing of a decree in terms of the award. His objections were:

(1) That the arbitrator had no locus standi to file the award himself. (2) That 'the application was barred by time under Article 178 of the Limitation Act. (3) That the arbitrator has misconducted himself. (4) That the application was bad for non-joinder of necessary parties.

The petition of objections was filed on 2nd of November 1946, the date fixed in the notice issued by the Court. It will be' observed that this petition was filed beyond thirty days of the date of the service of the notice upon him. No other party put in any appearance. When the case was taken up by the Court it was pointed out on behalf of Sri Nath that the objections of Dwarka Das having been filed beyond thirty days as provided in Article 158, Limitation Act, they could not be taken into consideration, and that, therefore, the Court was bound to pass a decree in semis of the award under Section 17, Arbitration Act. On behalf of Dwarka Das it was argued that the period of limitation prescribed under Article 158, Limitation Act, did not apply to his objections to the passing of a decree in terms of the award and that in any case the Court was bound to see whether the application under Section 14 itself was filed within time having regard to the period of limitation prescribed in Article 178, Limitation Act.

3. The learned Additional Civil Judge came to the conclusion that since Dwarka Prasad's objections fell within the purview of Article 158, limitation Act, and since they were filed beyond so days of the service of the notice upon him, they could not be looked into. He further came to the conclusion that if the objections of Dwarka Prasad could not be looked into he was bound so pass a decree in terms of the award under Section 17, Arbitration Act without going into anything else. In the result the Additional Civil Judge rejected the objections of Dwarka Prasad and passed a decree in terms of the award.

4. Against this order Dwarka Prasad has come up in appeal to this Court. On his behalf ' it has been urged by Mr. M. L. Chaturvedi that Article 158 did not apply to his objections. He had not made any application for setting aside the award or for getting the award remitted for re- consideration by the arbitrator. He had merely ' taken objections and stated the reasons why the petition of Sri Nath that the decree be passed in terms of the award should not be accepted. To : such an application, according to him, there is no period of limitation prescribed. He has further argued that in any event those objections which did not relate to the validity or otherwise of the award but touched the procedure of the Court in passing a decree in terms of the award should have been decided by the Court below.

5. We think that the first contention of learned Counsel that Article 158, Limitation Act, does not at all apply to a petition of objections filed by a party in answer to an application under Section 14, Arbitration Act, is not sound. The procedure provided in the present Arbitration Act is a little different from the procedure that was laid down in Schedule 2, Civil P.C. Under the Civil Procedure Code where an award had been made an application was to be filed under para. 20 of Schedule 2. Clause (3) of para 20 provides

The Court shall direct notice to be given to the parties to the arbitration, other than the applicant, requiring them to show cause, within a time specified, why the award should not be filed.

It will be observed that the notice required to be issued was a notice inviting the parties concerned to file objection within a certain time which was specified in the notice why the award should not be filed. Under the Arbitration Act of 1940, Section 14 (2) requires the Court to 'give notice to the parties of the filing of the award.' No objections to the application for filing the award in Court are invited. Sections 14 and 17, Arbitration Act, taken together clearly indicate that what the Court has to do is simply to give notice to the parties that an award has been filed in Court. In this notice it may or may not fix a date when the matter will be taken up finally by it. If any party has any objection to the award it is for him to make an application either for the setting aside of the award or for getting the award remitted for reconsideration of the arbitrator. This application has to be made under Section 33 of the Act which runs as follows:

Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits.

This application Has to be made within thirty days of the service of the notice issued under Section 14 of the Act. This is the period fixed in the amended Article 158, Limitation Act. If no such application is made, then the Court proceeds under Section 17, Arbitration Act, to pass a decree in terms of the award. This, however, presupposes that the Court has observed the procedure provided under Section 14 of the Act, namely, that it has given notice to the parties concerned and it has also seen whether the application under Section 14 is 'within time. If the procedure of the Court is not defective then all that has to be done by the Court, when no application for setting aside the award or for having the award remitted for re. consideration of the arbitrator is made within the time prescribed, is to pass a decree in terms of the award. Under the old law it was held in some cases that objections filed in response of the notice issued by the Court under para. 20 of Schedule 2, Civil P.C., were not governed by Article 158. The basis of these decisions was the aforementioned provision in Clause (3) of para. 20 of Schedule 2. As we have already observed, that provision no longer finds a place in the present Arbitration Act. Those rulings, therefore, are no longer good law. We, therefore, think that in so far as the objections of Dwarka Das relate to the setting aside of the award they are barred under Article 158, Limitation Act, and cannot be looked into.

6. The objections of Dwarka Das, however, relating to the procedure of the Court under Section 14, Arbitration Act, have to be decided even if they were not filed within thirty days after the service of notice upon him. These objections do not re-late to the validity or otherwise of the agreement of reference or the award, but relate to the procedure of the Court itself. When an award is filed in a Court the Court has to see whether the proceedings taken in Court are within the period of limitation prescribed for it and it has also to see that it has itself done its duty, namely, of sending notices to the necessary parties interested in the subject-matter of the dispute. We think that learned Counsel is right when he urges before us that the lower Court should have decided at least his two objections viz., that the application for filing an award was barred by Article 178, Limitation Act, and that necessary parties had not been impleaded in the application. We have, however, ourselves looked into these matters and have come to the conclusion that there is no force in them on merits,

7. As regards the applicability of Article 178, Limitation Act, to the proceedings initiated by the arbitrator, we may observe that Article 178 applies to an application under the Arbitration Act 'for the filing in Court of an award.' Limitation for filing such an application is 90 days from the date of service of the notice of the making of the award. Now, such an application must be by a party to the award and not by the arbitrator. Section 14 runs as follows:

(1) When the arbitrators or umpires have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award.

(2) The arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court and upon payment of the fees and eharge3 due in respect of the arbitration and award and of the costs and charges of filing the award, cause the award or a signed copy of it, together with any deposition and documents which may have been taken and proved before them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award.

It is clear that a party may ask the arbitrator himself to file the award in Court. If the arbitrator agrees, he will file it in Court. In that case the arbitrator need not make any application to the Court. He may merely file the award-in Court, and just intimate to the Court that he is doing so. Such an intimation will not be an application as contemplated under Article 178, Limitation Act for filing the award in Court. The arbitrator merely does a ministerial act in filing the award in Court. If, however, the arbitrator does not comply with the request of a party to file the award in Court, the party then has to make an application to the Court asking the Court to order the arbitrator to file the award in Court. Such an application by the party to the Court is covered by Article 178, Limitation Act, This a party can do within 90 days of the service of the notice given by the arbitrator that he has made an award. If the party fails to make such an application within the period prescribed, his remedy is lost unless he can persuade the arbitrator to file the award in Court at his own instance. The view that we have expressed above is supported by a number of authorities. In Keshri Mull v. Megh Raj Bas Deo : AIR1942Cal542 , it was held that:

The provisions of Article 178 of Schedule I, Limitation Act, do not apply to an award which had been already filed in Court, though the actual act of filing took place more than ninety days from the date of service of the notice of the making of the award. The period of limitation provided by that Article refers to an application to the Court by a party to an award to obtain an order directing the arbitrator to file the award and not to the act of filing the award itself.

Again in Jayanti Lal Jamnadas v. Chhagan Lal Nathoobhai A.I.R. (32) 1945 Bom. 417, it was held that:

Under Article 178 it must be an application made to Court for the filing in Court of an award which can come under that article. When the arbitrator files the award under Section 14 (2), at the request of a party to the arbitration agreement, he does not make an application to the Court as contemplated by Article 178, Limitation Act.

We, therefore, think that no objection can be taken to the filing of the award in Court on the ground of limitation.

8. As regards the notice to all the interested [parties in the case, it will be observed that Pearey Lal was impleaded in the cases for self land as karta of the joint family and so were the other parties to the case. They were served as such. In our opinion it was not necessary for the Court to issue notices to the junior members 'of the joint family of which Pearey Lal and Jagannath Prasad were the kartas even though such members were majors. The kartas of the two families sufficiently represented all the members of their families. There was, therefore, no defect so far as the proceeding of the Court under Section 14, was concerned. No other point was pressed before us and we think that the order of the Court below was correct. We dismiss the appeal with costs.


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