Batcha Sahib vs Abdul Gunny alias Abdul Karim Sahib and Eleven Ors.

Charles Arnold White, C.J.—This is an appeal against a decree on a ""judgment according to the award"" under paragraph 16 of the second

schedule to the Code of Civil Procedure. The decree is impeached by the appellant on two grounds: it is said first that there has been no award,

secondly, that, on the application to the District Judge to pronounce judgment according to the award, the learned Judge ought to have given an

opportunity to one of the arbitrators, who is described by the learned Judge as the ""dissenting arbitrator"" to give evidence, that he did not give that

opportunity and that being so the judgment according to the award is bad.

On behalf of the respondents a preliminary objection was taken that no appeal lies. It seems to me that on the authority of the Full Bench

decision which is reported in Tellapragada Surya Narayana Rao Vs. Tellapragada Sarabhaiah, the preliminary objection is good and should be

upheld. The judgment of the Fall Bench was with reference to a case which arose under the Code of 188''2. Now the doubts which had arisen

under the provisions of the old Code were removed by certain amendments being made in the corresponding provisions of the second schedule to

the new Code. Paragraph 15 (which corresponds to Section 521 of the old Code) provides that no award should be set aside ""except on one of

the following grounds."" In paragraph 15(1)(c) we have a new ground, namely, the award having been made after the expiration of the period

allowed by the Court. At the end of the paragraph we have the general words added ""or being otherwise invalid."" Those amendments of the law

were made for the purpose of removing doubts which had arisen. If on the authority of the Full Bench case, the objection that no appeal lies would

have been good under the old Code, a fortiori it is a good objection as the law now stands. The time prescribed for an application to set aside an

award is ten days from the submission of the award (Limitation Act, 1908, schedule I, Article 158) under paragraph 15 of the II schedule to the

Code of Civil Procedure, as amended; the Court might have set aside the award in the present case on the ground that it was otherwise invalid, if

the application had been made in time. In the present ease, the award would seem to have been submitted on the 29th of June. The application to

set it aside was made on July 18th, 1910. This would seem to have been overlooked. The order refusing to set aside the award appears to have

been made at the same time (September 2, 1910) as the judgment according to the award under paragraph 16 of the II schedule to the CPC

(which corresponds to Section 522 of the old Code) was given. In the present case the judgment according to the award was pronounced after

the time for making the application to set aside the award had expired. But even if this had not been so, as it seems to me, inasmuch as an

application to set aside the award bad been made and refused it would have been open to the Court to pronounce judgment even though the ten

days had not expired. The words ""after the time for making such application had expired"" would seem to apply only where there has been no

application made to sat aside the award. The law is thus stated by Mr. Banerji in his book on the Law of Arbitration in India, and I think correctly,

on page 293 -"" In order to secure finality to the judgment and decree the necessary conditions are that there has been no order remitting the

award, and that no application has been made to set aside the award within the ten days, or if an application has been made it has been refused

after judicial determination by the Court.

In the present case the Court refused to set aside the award. The judgment pronounced under paragraph 16(1) is therefore final under

paragraph 16(2).

Then we are asked to deal with the matter by way of revision. There is no formal application before us to revise but, as has been pointed out,

u/s 115 of the Code, a formal application is not necessary. In Ghulam Khan v. Muhammad Hassan ILR (1902) Calc., 167 the Privy Council

observed: ""Their Lordships are inclined to agree with the view of Clark, J., in 84 P.R. 1901 that in the case of an award revision would he more

objectionable than an appeal."" We are asked to interfere on the ground that the learned Judge ought; to have given one of the arbitrators an

opportunity to give evidence on the hearing of the application to sat aside the award. Speaking of this arbitrator, the Judge said, ""he was here on

the 11th August. Now he has been summoned, but cannot be found. Petitioner''s case turns on that man, yet petitioner took no steps to secure his

presence on the last occasion."" Then ha says ''I see no reason to adjourn this matter further; panohayatdars have given an award, but all that has

really happened is that the third, the absent man, does not agree with them in some points and so did not sign the award."" If it were quite clear that

the learned Judge has exercised discretion wrongly in this case, we might be prepared ta take the strong step of interfering on revision but the

general policy of the legislature is clear that in these matters the judgment in accordance with an award should be final. Mr. Ramachandra Aiyar has

been unable to call our attention to any case in which this Court has interfered by way of revision where a decree has been passed in accordance

with an award given by arbitrators, excepting a case decided by Wallis, J., Velu Pillai v. Appasami Pandaram (1911) 1 M.W.N., 141. In that case

it does not appear that there was any application to set aside the award and judgment was pronounced two days after the award was submitted. It

was not a case of impeaching an award but a case where the express provisions of paragraph 16 of schedule II of the CPC had been contravened.

I may refer to a decision of Munro and Abdur Rahim, JJ., in Kanakku Nagalinga Nath v. Nagahnga Naik I.L.R., (1909) Mad., 510. There it was

held under the old section that no appeal lay against a decree passed in accordance with an award excepting on the grounds stated in the section

and that no appeal will lie on the ground that an award is void ab initio. I refer to this case for the purpose of pointing out that it was never

suggested there that the Court should or could interfere in the exercise of its power of revision. I think we should uphold the preliminary objection

and dismiss the appeal with costs and I think we should decline to interfere by way of revision.

Tyabji, J.

I agree.