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Surya NaraIn Jha Vs. Banwari Jha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in17Ind.Cas.7
AppellantSurya NaraIn Jha
RespondentBanwari Jha and ors.
Cases ReferredGhulam Jilani v. Muhammad Hassan
Excerpt:
arbitration - award--decree based on award if appealable on ground that there was no valid award--application to set aside award--period of limitation, if court can extend--'if an application has been made to set aside award', meaning of--civil procedure code (act xiv of 1882), section 522--limitation act (ix of 1908), section 5, schedule i, article 158. - .....any question as to its competency. in that case, the award had been filed after the expiry of the time prescribed by the court, and it was held by the judicial committee that there was no legal award which could be made the foundation of a decree. it is clear, however, from the judgment of the judicial committee that no question as to the competency of the appeal was raised either before their lordships or in the high court. consequently, that decision cannot be treated as in any way in conflict with the later decision of the judicial committee in the case of ghulam jilani v. muhammad hassan 19 c. 167 : 12 m.l.j. 77 : 29 i.a. 51 : 4 bom. l.r. 161 : 6 c.w.n. 226 : 25 p.r. 1902.3. it is, further, worthy of note that even if the appellants were allowed to invite this court to interfere in.....
Judgment:

1. This appeal is directed against a decree made under Section 522 of the Code of Civil Procedure of 1882, in confirmation of an award of arbitration. A preliminary objection has been taken to the competency of the appeal, because under that section, an appeal does not lie from such decree except in so far as the decree is in excess of or not in accordance with the award. As the decree is not assailed on behalf of the appellants on the ground that it is in excess of or not in accordance with the award, the appeal is prima facie incompetent.

2. It has been argued, however, on behalf of the appellant, upon the authority of the decisions in Indur Subbaramani Reddy v. Kandadai Rajamanner Ayyangar 26 M. 47 and Muhammad Abid v. Muhammad Asghar 8 A. 64 : (1886) A.W.N. 2. (4) 13 A. 300 : 18 I.A. 45 that inasmuch as the decree is assailed on the ground that there was no award valid in law, the appeal is competent. But this contention cannot possibly prevail, in view of the plain language of Section 522, and of the exposition of the law by the Judicial Committee in Ghulam Jilani v. Muhammad Hassan 19 C. 167 : 12 M.L.J. 77 : 29 I.A. 51 : 4 Bom. L.R. 161 : 6 C.W.N. 226 : 25 P.R. 1902. Our attention, however, has been invited to another decision of the Judicial Committee in Raja Harnarain Singh v. Choudhrani Bhagwant Kuar (4) where an appeal, under somewhat similar circumstance, was allowed to be heard without any question as to its competency. In that case, the award had been filed after the expiry of the time prescribed by the Court, and it was held by the Judicial Committee that there was no legal award which could be made the foundation of a decree. It is clear, however, from the judgment of the Judicial Committee that no question as to the competency of the appeal was raised either before their Lordships or in the High Court. Consequently, that decision cannot be treated as in any way in conflict with the later decision of the Judicial Committee in the case of Ghulam Jilani v. Muhammad Hassan 19 C. 167 : 12 M.L.J. 77 : 29 I.A. 51 : 4 Bom. L.R. 161 : 6 C.W.N. 226 : 25 P.R. 1902.

3. It is, further, worthy of note that even if the appellants were allowed to invite this Court to interfere in the exercise of its revisional jurisdiction, he would still find himself in inextricable difficulty, as no application was made on his behalf to the Court below to set aside the award, The matter was referred to the arbitrators on the 14th March 1907. The award was filed on the 8th July 1909. The Court thereupon adjourned the case till the 18th July and directed the parties to file objections, if any, on or before that date. This was in strict conformity with Article 158 of the second Schedule of the Limitation Act. On the 17th July, it was discovered that the date to which the case had been adjourned was a Sunday; the Court thereupon adjourned the case to the 28th July. We cannot interpret this order in the sense that the time within which objection 'could be filed was also thereby extended to the 28th July. In fact, it was not competent to the Court to extend the period of ten days prescribed by Article 158, because, under Section 5 of the Limitation Act, the Court has no authority to receive an application to set aside the award after the expiry of the time prescribed by that Article. The appellant suggests, however, that he was misled by the order of the 17th July 1909 and alleges that he could not appear before the Judge on the date fixed, as the Court was held on that date in a place different from the locality wherein the Court was ordinarily held. It is not necessary for us to determine whether this latter allegation is or is not well founded on fact. The position is unassailable that no exception was taken within the time prescribed by Article 158 and it was not competent to the Court to extend the time prescribed by that Article. It thus became obligatory on the Court to confirm the award. But it has been ingenuously argued that an application to set aside the award was unnecessary, because the award had, in the eye of law, no existence, as the reference to arbitration was made with the concurrence of a person who had no authority to act on behalf of the guardian of the appellant, an infant at that time. This contention is clearly fallacious. Section 522 of the Code of 1882 provides that if the Court sees no cause to remit the award or any of the matters referred to arbitration for re-consideration in the manner aforesaid, that is, under Sections 520 and 521, and if no application has been made to set aside the award or if the Court has refused such application, the Court shall proceed to give judgment according to the award. The expression if no application has been made to set aside the award is clearly comprehensive enough to cover a case of the present description, and refers to a contingency other than the remission of an award. The award here, if not successfully challenged, would be prima facie binding upon the appellant; if there was good reason to assail the award, it was competent to his guardian ad litem to apply to the Court to set to aside within the time prescribed by Article 158. This was not done; and the Court had thus no other course open than to record an order of confirmation.

4. It has finally been represented to us that the appellant, at the time of the proceeding in the Court below, was an infant, and that, although he has since then attained majority, he is now insane. This may the a matter for regret, but plainly cannot affect our decision. We do not, however, express any opinion upon another aspect of the matter suggested in the course of argument, namely, whether it is possible for the plaintiff to obtain relief in a separate declaratory suit, on the ground of negligence of his guardian ad litem. We only hold that the present appeal is incompetent and that, even if we had been invited to interfere in the exercise of our revisional jurisdiction, we could not afford any relief to the petitioner in the events which have happened.

5. The result is that this appeal is dismissed with costs. We assess the hearing fee at five gold mohurs.


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