P.V.B. Rao, J.
1. This revision is directed against the order of the learned Subordinate Judge, Pun, refusing to extend the time for passing an award on a reference made by the parties.
2. In pursuance of the terms of an agreement executed by the petitioner and the Government of Orissa in July, 1953, the Governor of Orissa constituted a Tribunal consisting of three members for adjudication of the dispute between the parties. The Chairman of that Tribunal sent an application to the learned Subordinate Judge along with a letter dated 20-6-56 stating the circumstances under which the award could not be made within four months after entering on the reference and also requesting for enlargement of time. The petitioner also filed a similar application.
3. The date of entering on the reference was 27-1-54 when all the members of the Tribunal met together. On 22-4-54 the petitioner filed an application before the Tribunal to withdraw the reference and after hearing the said petition, the Tribunal made an order to the effect that all the members of the Tribunal, the Government Pleader and the representatives of the parties were present and that the petitioner's application for withdrawal was put up, and after hearing the parties they passed an order to the effect that the first petitioner's reference was withdrawn.
Subsequently perhaps coming to know of the exact legal position, the petitioner filed an application before the Chairman of the Tribunal to withdraw his application for withdrawal of the reference. The Tribunal ordered on 14-5-56 the restoration of the reference as the Tribunal was not entitled to allow the withdrawal of the reference. Consequently, as by that time four months had expired from the date on which the arbitrators entered on the reference, it was felt necessary that there should be an extension of time for passing the award by the Tribunal.
4. Mr. S. K. Ray, the learned counsel for the petitioner contends that the order of the learned Subordinate Judge is vitiated by material irregularities, I think, the learned Subordinate Judge erred in holding that by the time when an application was presented before him under Section 28 of the Arbitration Act, the dispute giving rise to the reference ceased to exist. He seems to be of the view that as the Arbitration Tribunal allowed withdrawal, it ceased to have seisin of the matter. When the Arbitration Tribunal has no power to allow withdrawal of the reference the order allowing withdrawal is clearly void and is of no legal effect.
As such the reference is in existence and the Tribunal has seisin of the matter. It can, therefore, apply for extension of time. Section 28 of the Arbitration Act gives a wide discretion to the Court to extend time and under that section time can be extended even after an award was pronounced long after four months from the date on which the arbitrators entered on the reference.
5. The only contention taken by Mr. Acharya appearing for the opposite party is that no revision is maintainable against the order and that an appeal has to be filed, His contention is that refusal to extend time amounts to supersession of the arbitration and as such is appealable under Section 39(1) of the Arbitration Act of 1940. He relied upon a decision in the case of G, Martirozi v. Subramanian Chettiar, reported in AIR 1928 Mad 69 (FB) (A), in support of his contention. That was a case under the Indian Arbitration Act, 1899, which did not apply to cases other than those cases which can be instituted in the Presidency towns unless specifically extended by the Government.
The point decided in that case was only whether an order refusing to extend time was a judgment appealable under clause 15 of the Letters Patent of the Madras High Court. It was held that such an order is a judgment under Clause 15. I do not think that this decision applies to the case before me. I am of the opinion that refusal to extend time by the court on the application of the arbitrators or the party does not amount to an order superseding the arbitration so as to be appealable under Clause (1) of Section 39 of the Arbitration Act of 1940.
6. On the other hand, the Madras case relied on by Mr. Acharya supports the petitioner's case that the lower court wrongly exercised its discretion in refusing to extend the time.
7. In my view, the learned Subordinate Judge wrongly exercised his discretion in refusing to extend the time. The revision petition is allowed, the order of the learned Subordinate Judge is set aside and I extend the time for passing the award by four months. The petitioner will have his costs in both the courts. Hearing fee Rs. 50/-.