Batcha Sait vs Abdul Gunny alias Abdul Karim Sait and Others

Arnold White, C.J.—This is an appeal against a decree on a "" judgment according to the award "" under paragraph 16 of the 2nd 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 Pull Bench

decision which is reported in Suryanccrayana Rao v. Subbiah (1910) 21 M.L.J. 263 the preliminary objection is good and. should be upheld. The

judgment in the Full Bench case was with reference to a case which arose under the Code of 1882. 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 viz., 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."" These 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 Second Schedule to the CPC

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 case, the award would seem to have been submitted on the 29th 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 lime

(Sep. 2nd 1910) as the judgment according to the award under paragraph 16 of the 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 presented 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 had been made

and refused it would have been open to the Court to pronounce judgment even though the 10 days had not expired. The words "" after the time for

making such an application had expired "" would seem to apply only where there has been no application made to set aside the award. The law is

thus stated by Mr. Bannerjee 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 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 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 15 of the Code, a formal application is not necessary. In Ghulam Khan v. Muhammad Hassan ILR (1901) C. 169 the Privy Council

observed (on page 185) ""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 be 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 set 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 he says "" I see no reason to adjourn this matter further; panchayetdars 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 jurisdiction wrongly in this case, we might be prepared to 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 Mr. Justice Wallis: Vein Pillai v. Appdsami 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 Mr. Justice Munro and Mr. Justice Abdur Rahim in Kanahku

Nagalinga Naick v. Nagalinga Naich ILR (1909) M. 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 ground 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

powers 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.