1. Parties to the present revision agreed to refer the matter in dispute between them to arbitration. This submission was made after the suit had been filed in the Court below. The arbitrator submitted a long award in which he says that the plaintiff had managed to get a blank document from the defendant which was scribed three years after, that the plaintiff's suit was absolutely frivolous and that therefore in his opinion, the suit ought to be dismissed with costs. The award seems to end here and two small lines are drawn.
2. Then there is another paragraph in Which it is stated that the arbitrator and the 'hazrin jalsa' (I am not in a position to understand what this expression means) make a prayer to the Court that Rs. 184 should be decreed against the two defendants with certain conditions. Objections were filed to this award on behalf of the plaintiff. A rejoinder was filed on behalf of the defendant on 2nd January 1932 (paper No. 102-C), in which amongst other things it was stated that the decision of the arbitrator allowing Rs. 184 to the plaintiff was outside the scope of reference and therefore that part of the award should he ignored. When the time for deciding the objections filed by the plaintiff, came, the plaintiff agreed to abide by a special oath administered to the defendant'. The defendant took that oath and according to his statement the objections filed by the plaintiff were dismissed. The Court below then proceeded to pass a decree in terms of the award and incorporated in its decree the provisions regarding Rs. 184.
3. In revision before me it is contended that the Court below was wrong in giving a decree to the plaintiff for a sum of Rs. 184 in respect of a matter which was not the subject-matter of the suit, and which was never referred to the arbitrator. It is also argued that the arbitrator's decision on that point amounts only to a recommendation and not an award. I am not in agreement with this latter contention of Mr. Kunzru, because the mere fact that an arbitrator chooses to submit his opinion in language, polite and respectful, does not take his opinion outside the category of an award. On the other point, however a lot can be said. Mr. Malik on behalf of the opposite party has argued that the arbitrator was within his rights in giving a decision regarding the Rs. 184. I am not in a position to adjudicate upon that point, because I have not had the benefit of the opinion of the Court below on that point. Mr. Malik further contends that the application of the defendant was filed more than 10 clays after the filing of the award, and consequently was barred by time under Article 158, Limitation Act. My view is that an objection under para. 12 or para. 14, Schedule 2, Civil P.C, is something different from an objection under para. 15, and Article 158, applies only to objections under para. 15, where the application is to set aside the award completely. Where a prayer is only for the modification, or the remission of the award, the prayer comes within para. 12 or para. 14, and consequently Article 158, is not applicable. I am supported in my view by the case of Appayya v. Venkataswami AIR 1919 Mad 877, and the case of K. Hyder Saheb v. N. Giria Chettiar (1913) 19 IC 496. The application of the defendant dated 2nd January 1932, was an application not for setting aside the award but for ignoring a portion of it and modifying it accordingly and is not barred by 10 days' limitation prescribed in Article 158.
4. The Court below has not considered that matter at all and in not considering a matter to which its attention was drawn, it has acted with materia] irregularity in the exercise of its jurisdiction, and the decision of the Court below is liable to be set aside in revision. The case of Aijaz Ali v. Zohra : AIR1932All76 , cited by Mr. Malik is not to the point and is easily distinguishable. I am not in a position however to say whether the objection of the defendant contained in his application of 2nd January 1932, was seriously pressed before the Court below or not, and whether there is any force in it or not. The Court below is the best Judge to adjucate upon that point. For the above reasons, I set aside the decree of the Court below and remand the case to that Court for decision according to the observations contained in my judgment. Costs here and heretofore shall abide the event.