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Mamidi Appayya and ors. Vs. Yedan Venkataswami, Minor by His Next Friend Pillimetla Nanni and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in47Ind.Cas.597
AppellantMamidi Appayya and ors.
RespondentYedan Venkataswami, Minor by His Next Friend Pillimetla Nanni and ors.
Cases ReferredRamesh Chandra Dhar v. Karunamoyi Dutt
Excerpt:
.....should take [vide nand ram v. the district munsif observes that the latter cannot strictly be termed an award and that the pleader had no good reason for being misled and was..........40 ind.cas 422 also banerji's law of arbitration in india, 2nd edition, page 225]3. after the district munsif had passed decree in the terms of the award of the majority of the arbitrators, the defendants nos. 2, 4 and 5 presented a review petition which was rejected without going into the question of the legality of the award, mainly for the reason that the review petition was put in nearly three months after the decree had been passed, while article 158 of the limitation act allows only ten days' time to apply to set aside an award from the date of its submission to the court.4. the respondents support the district munsif's order declining to review his own judgment on the ground of limitation, and further raise the same objection against the high court's entertaining the present.....
Judgment:

Spencer, J.

1. These civil revision petitions arise out of a suit in which there was a reference made by consent of the parties to three arbitrators and a decree was passed by the Court on the award of two of them.]

2. The parties agreed to abide by the decision of the majority, but the petitioners seek to impugn the legality of the award which two out of the three arbitrators have signed because the arbitrators did not all meet together and deliberate upon the matter submitted to them, as appears from the 3rd arbitrator's separate award or report and from the 2nd defendant's affidavit. It is a well established principle in regard to arbitration that for the final award to be valid, it is essential that all the arbitrators should be present at all the meetings including the last, that witnesses should be examined in the presence of all, and that all should consult together as to the form that their award should take [vide Nand Ram v. Fakir Chand (1885) A.W.N. 139 , Thammiraju v. Bapiraju 4 Ind. Dec. 428 and Abu Hamid Zahir Ala v. Golam Sarwar 40 Ind.Cas 422 Also Banerji's Law of Arbitration in India, 2nd edition, page 225]

3. After the District Munsif had passed decree in the terms of the award of the majority of the arbitrators, the defendants Nos. 2, 4 and 5 presented a review petition which was rejected without going into the question of the legality of the award, mainly for the reason that the review petition was put in nearly three months after the decree had been passed, while Article 158 of the Limitation Act allows only ten days' time to apply to set aside an award from the date of its submission to the Court.

4. The respondents support the District Munsif's order declining to review his own judgment on the ground of limitation, and further raise the same objection against the High Court's entertaining the present petition and quote Ghulam Khan v. Muhammad Hossain 6 C.W.N. 226 ; 29 I.A. 51 in support of their contention.

5. It has, however, been held in this Court that the period of ten days' limitation for applying to set aside an award prescribed under Article 158 of the Limitation Act is not applicable to, proceedings under Section 12 or 14 of Schedule II of the present Civil Procedure Code and that there is no limitation of time for making applications to remit an award for re-consideration of the arbitrators owing to some objection to the legality of the award being apparent on the face of it [see Hyder Sahib v. Giria Chettiar 19 Ind. Cas. 496 .

6. I think that the fact that the award, when presented, bore the signatures of only two out of the three arbitrators was an illegality on the face of the award [see Ramesh Chandra Dhar v. Karunamoyi Dutt 33 C. 498 and that this omission should have attracted the attention of the Court and should have led to consideration whe-ther the award should not be remitted under Section 14, Clause (c), of Schedule II of the Civil Procedure Code for reconsideration by the arbitrators.

7. The Pleader for defendants Nos. 2, 4 and 5 filed an affidavit in which he explained that he did not file objections to the award of the two arbitrators, as he thought that the award of the third arbitrator, which was favourable to his clients, was the only award on the record. The District Munsif observes that the latter cannot strictly be termed an award and that the Pleader had no good reason for being misled and was negligent. He should have lost no time in filing objections and he should have been present at the hearing on February 3rd, 1916, when he would have known about the award of the two arbitrators dated 9th January and filed on January 12th. He has not scrupled to suggest that this award was subsequently written and ante-dated, although the Court stamp shows it to have been filed in Court on the 12th. But the mention in the Court's B diary of the receipt of only one award without an entry being made when the 3rd arbitrator's report was received on the 17th has given occasion for the Pleader to say that he only knew of one award and he has thus taken advantage of the Court's omission to mention both awards. It would, in my opinion, have been unfair to the defendants to put them on terms owing to their Pleader's neglect to look into the award and to give them another chance of objecting to the award which was unfavourable to them, on condition of their paying the plaintiff's costs for the hearing on February 3rd and 4th.

8. Accordingly I set aside the order and decree of the lower Court and direct that, if the petitioners pay into Court such costs as the District Munsif may allow to the plaintiff for the hearings of February 3rd and 4th and if within ten days of the receipt of this order in that Court the defendants file objections to the award file] on January 12th, the District Munsif will consider those objections and if he finds them to be true and substantial objections to the legality of the award, will remit the award for re-consideration of the same three arbitrators. In case the arbitrators refuse to consider it, it will then be time for the lower Court to determine whether it will set aside the award under Section 15 of Schedule II of the Civil Procedure Code and decide the case itself.

9. Costs of Civil Revision Petition No. 1394 of 1918 will be costs in the cause and will abide and follow the result.

10. In the event of the petitioner failing to file objections and to deposit the plaintiff's costs, as above mentioned, within the time allowed, these petitions will stand dismissed with costs of Civil Revision Petition No. 1394 of 1916 as from that date.


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