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Gayan Singh Vs. Harbilas and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad
Decided On
Reported inAIR1930All711
AppellantGayan Singh
RespondentHarbilas and anr.
Excerpt:
- .....an order in express terms:that the parties are to file objections, if any, to the award within the period prescribed by law and the case be put up for orders on 30th march 1928.3. this order was communicated to the pleaders of the parties concerned and their initials were obtained on the order-sheet. no objection was filed to the award till 28th march 1928. admittedly the objections were filed beyond the time prescribed by article 158. the plaintiff, however, prayed for the period of limitation being extended in his favour under section 5, lim. act, upon the ground that his son had mysteriously disappeared from home and that he was away from his house in search of his son for a number of days and did not return till the evening of 27th march 1928. he prayed that this period should be.....
Judgment:

Sen, J.

1. Hakim Gayan Singh had instituted a suit in the Court of the Subordinate Judge of Agra for rendition of accounts on a dissolution of partnership. The suit was directed against Lala Harbilas and three other defendants. The matter was referred to arbitration and an award was given on 27th July 1927. We do not know when this award was filed in Court; and notwithstanding our pressing for this information we have not been able to elicit the exact date when the award was filed. The Court, however, without waiting for the ten days within which an objection could be preferred to the award, made the award a rule of the Court on 29th July 1927. An appeal was preferred. The lower appellate Court set aside the decree passed on the award and remanded the case to the trial Court with the direction that notice of the award should be given to the appellant and an opportunity given to him to file an objection to the award if he were so advised, within the period of limitation prescribed by Article 158, Lim. Act.

2. On 17th March 1928, the trial Court made an order in express terms:

that the parties are to file objections, if any, to the award within the period prescribed by law and the case be put up for orders on 30th March 1928.

3. This order was communicated to the pleaders of the parties concerned and their initials were obtained on the order-sheet. No objection was filed to the award till 28th March 1928. Admittedly the objections were filed beyond the time prescribed by Article 158. The plaintiff, however, prayed for the period of limitation being extended in his favour under Section 5, Lim. Act, upon the ground that his son had mysteriously disappeared from home and that he was away from his house in search of his son for a number of days and did not return till the evening of 27th March 1928. He prayed that this period should be deducted. The Court below very properly refused to accede to this request. It was not within the desecration of the Court to enlarge the time prescribed by Article 158 by invoking the aid of Section 5. It held that the objections were filed beyond ten days prescribed by law, overruled the objection and made the award a rule of the Court.

4. An appeal was presented to the lower appellate Court on the ground that the period ought to have been extended under Section 5, Lim. Act. The lower appellate Court held and rightly held that the plaintiff applicant was not entitled to invoke the aid of Section 5, Lim. Act. It further found that the decree having been passed in accordance with the award no appeal lay to it. It therefore dismissed the appeal.

5. The applicant comes before this Court in revision under Section 115, Civil P.C. This is not a case in which there has been an erroneous assumption of non-exercise or irregular exercise of jurisdiction. It is clear to us that under the circumstances the present application for revision is not competent under Section 115, Civil P.C. Reliance has been placed upon the phraseology of Article 158, Lim. Act (Act. 9 of 1908) under which the period for objections is ten days from the date when the award is filed in Court and notice of the filing has been given to the parties. It has been contended that no notice of the award was given to Hakim Gayan Singh, plaintiff, and that the notice given to his pleader was not a 'notice given to the party concerned within the meaning of this article. No authority has been cited in support of this proposition. 'Parties' in Article 158 cannot be confined to parties personally and includes pleaders and other persons specially authorized by the parties to take notice. The pleader to whom notice was given was a person so authorized. This application is without force and is dismissed with costs including in this Court fees on the higher scale.


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