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Bansilal Bansidhar Vs. Nandlal - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 7 of 1971
Judge
Reported inAIR1975MP25; 1974MPLJ552
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47; Registration Act, 1908 - Sections 49; Arbitration Act, 1940 - Sections 17
AppellantBansilal Bansidhar
RespondentNandlal
Appellant AdvocateR.S. Garg, Adv.
Respondent AdvocateB.L. Pavecha, Adv.
DispositionAppeal dismissed
Cases ReferredPerayya v. Subba Rao
Excerpt:
- - an argument like the present that the decree passed on an award before the expiry of the period of limitation for filing objections is a nullity was expressly rejected. 6. however, we would also like to add that the provisions contained in section 17 of the arbitration act, 1940 do not indicate that it is a condition precedent to the exercise of such jurisdiction by the court that the period of limitation provided for making an application to set aside the award must expire before the court pronounces the judgment according to the award. in other words, the jurisdiction of the court to pronounce judgment under section 17 of the arbitration act, 1940 does not depend on the expiry of that period in a case like the present where the parties had expressly consented to the pronouncement..........of that period. apart from this, no appeal or revision was also filed against the judgment and decree passed by the court either by the appellant or anyone else. the decree was then sought to be executed and it was at that stage that objections to the execution were taken by the judgment-debtor. it is these objections which have led to the present appeal. 3. shri r. s. garg, learned counsel for the appellant has advanced two arguments in support of this appeal, both of which have been rejected by the learned single judge. the first argument is that for want of registration, the decree passed on that award cannot be executed. the other objection is that the court had no jurisdiction to pass a judgment and decree according to the award before the expiry of the limitation prescribed for.....
Judgment:

J.S. Verma, J.

1. This is an appeal under Clause 10 of the Letters Patent against a decision of Krishnan J. in Misc. Appeal No. 111 of 1971.

2. The appellant is a judgment-debtor in a decree passed on an award. The award was made on 27-3-1965 and was filed iu the Court on 2-4-1965 for being made a rule of the Court. On 7-5-1965 the parties to the award including the present appellant appeared in the Court and filed their written consent to the award expressly stating that they had no objection to the award being made a rule of the Court, and it was prayed that an order be made accordingly. Acting on the consent of the parties and rinding no cause to either remit or set aside the award, the Court passed a judgment and decree according to that award. Admittedly, the limitation pi ascribed for filing objections to the award had not expired on 7-5-1965 but no objections were filed by the appellant or any one else to the award till the expiry of that period. Apart from this, no appeal or revision was also filed against the judgment and decree passed by the Court either by the appellant or anyone else. The decree was then sought to be executed and it was at that stage that objections to the execution were taken by the judgment-debtor. It is these objections which have led to the present appeal.

3. Shri R. S. Garg, learned counsel for the appellant has advanced two arguments in support of this appeal, both of which have been rejected by the learned Single Judge. The first argument is that for want of registration, the decree passed on that award cannot be executed. The other objection is that the Court had no jurisdiction to pass a judgment and decree according to the award before the expiry of the limitation prescribed for filing objections to the award. Shri Garg has, however, very fairly placed the relevant authorities before us including those of this Court, which negative his contentions.

4. The first argument of Shri Garg is concluded by a Full Bench decision of this Court in Moolchand v. Maganlal, AIR 1965 Madh Pra 75 (FB). It was held therein that a decree given on the basis of an unregistered award is not a nullity and for that reason it cannot be questioned in execution. In the present case also the objection having been raised only at the stage of execution the same is not tenable since at this stage the decree could be challenged only if it were a nullity and not otherwise. The point being covered by a decision of the Full Bench of this Court, no further discussion of the same is necessary.

5. The other argument of Shri Gait-is also without merit. Shri Garg has relied strongly on Srikishin v. Relumal, AIR 1916 Sind 79 in support of his contention. There can be no doubt that some observations in that decision do support the contention. However, that was a case in which the judgment and decree passed on the award was directly challenged in a revision and the objection was not taken for the first time at the stage of execution as in the present case. In a revision filed under Section 115 of the Code of Civil Procedure interference could be made even where there was an irregular exercise of jurisdiction but such a defect alone not rendering the decree a nullity is not sufficient to permit interference at the stage of execution, Such a defect amounting to an irregular exercise oi jurisdiction could, therefore, justify interference in revision under Section 115 of the Code of Civil Procedure. This distinction alone is sufficient to distinguish, AIR 1916 Sind 79 (supra).

In Pandurang v. Amrit Rao, AIR 1931 Nag 112 such an argument was expressly rejected and it was held that a decree could be passed before the expiry of the limitation prescribed for filing the objections, where there was valid consent of the parties given before the decree was passed. The aforesaid decision of the Sind Court was referred in the Nagpur decision but the same was distinguished. A similar view has been taken in Perayya v. Subba Rao AIR 1961 Andh Pra 159 and the aforesaid Nagpur decision was relied on. An argument like the present that the decree passed on an award before the expiry of the period of limitation for filing objections is a nullity was expressly rejected. With respect, we are in agreement with that view.

6. However, we would also like to add that the provisions contained in Section 17 of the Arbitration Act, 1940 do not indicate that it is a condition precedent to the exercise of such jurisdiction by the Court that the period of limitation provided for making an application to set aside the award must expire before the Court pronounces the judgment according to the award. In other words, the jurisdiction of the Court to pronounce judgment under Section 17 of the Arbitration Act, 1940 does not depend on the expiry of that period in a case like the present where the parties had expressly consented to the pronouncement of the judgment in accordance with the award. In our opinion, Section 17 of the Arbitration Act, 1940 only requires that the Court after hearing the objections, if any, of the parties is required to determine whether there is any cause to remit or set aside the award and on its reaching the conclusion that no ground for remitting or setting aside the award is made out the judgment and decree according to the award has to follow. These are the only conditions precedent required to be met before the Court proceeds to pronounce judgment according to the award. Where as in the present case, before expiry of the period prescribed for making an application for setting aside the award the parties appeared in Court and expressly stated that they have no objection to file and the Court finds no cause to either remit or set aside the award, it is not mandatory that the Court should wait till the expiry of the period of limitation for making such an application before it proceeds to pronounce judgment according to the award. In such a case, the only condition precedent of hearing the parties to the award and determining the question whether there is any cause for remitting or setting aside the award having been fulfilled, there is no defect of jurisdiction so as to render the judgment and decree a nullity. It is no doubt true that it would be more proper for the Court to wait till the period has expired so that there is no possibility of any of the parties retracting from the consent within that period but in a case like the present where no such objections were in fact filed at any time thereafter, the resultant judgment and decree cannot be treated as a nullity so as to permit raising of the ground at the stage of execution. Such a defect, if any, may amount at the highest to an irregular exercise of the jurisdiction which is curable by consent and the same is not tantamount to an inherent lack or want of jurisdiction rendering the judgment and decree a nullity. For this reason, the appellant cannot be permitted to raise this objection praticularly on the facts of this case at the stage of execution. This argument is also, therefore, rejected.

7. Accordingly, this appeal fails and is hereby dismissed with costs. Counsel's fee Rs. 100/- if certified.


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