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Antarijami Khadanga Vs. Ketaki Debi and ors. - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 215 of 1948
Reported inAIR1952Ori173
ActsArbitration Act, 1940 - Sections 14(2) and 17
AppellantAntarijami Khadanga
RespondentKetaki Debi and ors.
Appellant AdvocateB.N. Das, ;S.K. Ray and ;G.B. Mohanty, Advs.
Respondent AdvocateG.G. Das, Adv.
DispositionRevision dismissed
.....are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the a petition was filed by the petitioner see-king the court's permission to treat the appeal as civil revision. the court as then advised, accepted the prayer and allowed the appellant (as he then was) to convert it into a civil revision. they further said that it should be disposed of in due course.5. with regard to the maintainability of the civil revision as such, no question had ever since been raised until the matter was discussed before us at the hearing.6. it appears that in the court below there has been some confusion, or i could go so far as to say error, with regard to the procedure that has to be followed under the provisions of this act, this will appear on reading section 17. section 17 requires that, the court has first to consider if he had any cause to remit the award.....

Ray, C.J.

1. This case involves certain complicated questions of law. The facts, however, are very simple, namely that the parties before us made a reference to arbitration for partition of certain properties which were joint, as between them. The sole arbitrator gave an award which was later registered The opposite party No. 1 (Ketaki Devi), deriving her interest from one of the parties to the arbitration, namely, Somanath Khadanga, made an application to the Court below under Section 14(2) of the Indian Arbitration Act (hereinafter called 'the Act') in order to cause the award to be filed in Court. The award was filed by the arbitrator. Out of the three parties to the arbitration proceeding, only two, namely, the petitioner before us and the opposite party No. 1 preferred objections to the validity or sufficiency of the award. Later, Ketaki Devi withdrew her objection and went on with the proceeding for filing the award and passing a decree thereon. The present petitioner was notified about the proceeding and he put in several objections to the award. The objections can be grouped into two classes, one affecting the award as to its being beyond the subject of reference, and the other its validity -- the arbitration proceedingbeing vitiated by fraud, collusion and various other illegalities and irregularities.

2. The Court below, after due consideration of the evidence and other materials before him, came to the conclusion that the award was not vitiated by the alleged fraud, confusion or anything of the kind. He, however, decided that the reference to the arbitrator did not contain any reference with regard to the moveables it being confined solely to the immoveable properties that were joint between the parties. He, however, said 'it seems that the arbitrator had the consent of the parties to his deciding the dispute as to the moveables.'' He then, proceeded to say that by that decision the award could not be invalidated as the decision with regard to the moveables was clearly severable.

3. Alter he decided this in accordance with the terms of Section 17 of the Act, he had to pronounce a decree. Thereafter, the present petitioner before us preferred an appeal purporting to be one under Section 39 of the Act and also one under Section 17. In fact the reliefs sought in the memorandum of appeal was to have the decree set aside. According to Section 39 an order refusing to set aside an award or an order modifying an award like certain orders specified in that section are appealable. According to Section 17, the decree is appealable on the only ground that it is in excess of, or not otherwise in accordance with, the award.

4. After the appeal was filed, the Stamp Reporter of the Court pointed out that though an appeal could lie against the order refusing to set aside the award, it was in form and substance an appeal against the decree and as such had been inadequately stamped. The question of its maintainability came up before a Bench of this Court before whom, it is submitted before us, that matter was argued for about three to four days, each day for about half an hour. On the last day a petition was filed by the petitioner see-king the Court's permission to treat the appeal as Civil Revision. The Court as then advised, accepted the prayer and allowed the appellant (as he then was) to convert it into a Civil Revision. They further said that it should be disposed of in due course.

5. With regard to the maintainability of the Civil Revision as such, no question had ever since been raised until the matter was discussed before us at the hearing.

6. It appears that in the Court below there has been some confusion, or I could go so far as to say error, with regard to the procedure that has to be followed under the provisions of this Act, This will appear on reading Section 17. Section 17 requires that, the Court has first to consider if he had any cause to remit the award (under Section 16 of the Act) or any of the matters referred to arbitration for reconsideration (under Section 16 of that Act) or to set aside the award. Provided the Court sees no cause to do either, he shall after the time for making an application to set aside the award has expired or such an application having been made, after refusing it, proceed to pronounce judgment according to award. What happened in this case is that the Court did not make any distinction between the preliminary orders that he has to pass as pointed out in the first part of the section and the subsequent orders as to his setting aside or refusing to set aside the award. This mistake is mainly due to the conduct of the party in the Court below. The petitioner before us, whose interest is to have the award set aside, did not file an application in the form of an application for setting aside the award. What he did was that in his objection to the prayer of Ketaki Devi to file the award and to pass a decree on it, he raised grounds which, ii established and proved, could have vitiated the award. The judgment passed by the Court was a composite one in which he recorded his reasons that he saw no cause either to remit the award or to remit any of the matters referred to him for reconsideration, or to set aside the award and that the award not haying been set aside he was going to pronounce his judgment upon which he directed that a decree should follow.

7. The party aggrieved also misconceived his remedies. When both the matters have been jointly considered, he was entitled to maintain an appeal against the judgment or order refusing to set aside the award within the meaning of Section 39(1)(iv), and besides he was entitled to prefer an appeal against the decree, if such an appeal was available on the ground specified in Section 17. The appeal was, however, at least in form directed against, the decree and was in substance withdrawn. The party did not insist upon having the appeal maintained as an appeal against the order refusing to set aside the award. On the contrary, he filed Civil Revision seeking the remedy against the decree. If the decree is not challengeable in appeal except upon grounds specified in Section 17, it can far less be challengeable on any other ground in revision. This is enough to dispose of this case and to dismiss the Civil Revision.

8. But, however, a question arises as to whether the Civil Revision should lie against the order of the Court below involved in his judgment refusing to modify the award aS I have already pointed out, the Court either gave a finding that the award was in excess of the reference, or left the matter open as between the parties. In either view, he declined to modify the award, because he has accepted the award as a whole. He was perfectly right, to say that the matter with reference to which the arbitrator exceeded his jurisdiction did not affect the integrity or the validity of the award as the division of moveables not being the subject matter of the reference was severable and could be separated without affecting the award as a whole. But the award as it is, being now made a part of the decree, and according to Section 32 of the Act it not being open to the party to an arbitration to challenge the award or the decree passed upon it in regular Civil Court, the party remains without a remedy.

9. The question, therefore, arises whether the Civil Revision is maintainable as against such an order. Sections 17 and 39 contain all the remedies provided for in this Act to aggrieved parties against the order of the Court before whom the award was filed. Section 17 refers to the decree and Section 39 refers to all kinds of orders which are appealable. Section 39(1)(iii) makes an order modifying or correcting an award appealable. It also makes an order refusing to set aside the award appealable. But an order refusing to modify or correct an award is not included in it, nor does this come as one of the grounds specified in Section 17 on which a decree can be challenged in appeal. If the award even though in excess of the reference is accepted as a whole and a decree is passed upon it, there is no inconsistency left between an award and the decree. Therefore, the question arises whether any remedy is open to the party. This leads us to Section 41 of the Act, which provides :

'Subject to the provisions of this Act and of rules made thereunder, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court, and to all appeals under this Act.'

It is contended by Mr. B. N. Das, the learned counsel for the petitioner, that according to this provision, for any remedy not otherwise provided for nor prohibited by the Act, the remedy residuary in character under the Code of Civil Procedure, that is under Section 115 or Section 151 of the Code is available to an aggrieved party. This contention has very great force, and I am inclined to accept it; as correct; but as at present advised I will leave the question at large so far as this Court is concerned. It appears to me that a narrow construction of Section 41(a) is also possible. According Ho that narrow construction, Section 115, C.P.C., may not be extended as providing remedy sought for. But at the same time, it has to be remarked that the Act nowhere has said that any order not appealable according to the provisions of this Act is otherwise final. So in the absence of that statutory finality being assigned to that order, the inherent jurisdiction of this Court ought to extend to remedy the wrong. As nature abhors a vacuum, the rule of natural justice abhors a wrong without a remedy.

10. So far as the present petition before us is concerned, the only thing that can be said about it is that it is not maintainable and the party has not conducted his case in this Court with any amount of diligence and is not entitled to have any sympathy from this Court. In the result, the petition is dismissed with costs. We assess the hearing fee at two gold mohurs.

Narasimham, J.

11. I agree with my Lordthat this revision petition must be rejected asnot maintainable, as the prayer, asked for therein,namely, to set aside the judgment and decree ofthe Court below, would bring it within the scopeof Section 17 of the Indian Arbitration Act, 1940.The limited power, under which the appellate Courtcan interfere with the judgment and decree passedby the lower Court under Section 17, is admittedlynot applicable to this case. Therefore, the petitionwhich is in substance an appeal under Section 17must fail. On the bigger question as to whetherthe revisional jurisdiction of the High Court canbe invoked under Section 115, Civil P. C. to grantrelief in respect of matters not provided for ineither Section 17 or 39 of the Act, I would reservemy opinion as it does not directly arise in thepresent case.

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