F.P.S. Albuquerque vs The Catholic Bank Ltd.

Wadsworth, J.—The appellant was indebted to the respondent bank and the parties referred their dispute regarding the debt to an arbitrator

who, on 3rd January, 1938 gave an award in favour of the bank holding that the appellant had to pay Rs. 54,492-4-0. This award was registered

on the 20th January, 1938 and on the 31st January, 1938, it was filed in the Court of the Subordinate Judge, South Kanara, on the assumption that

the procedure laid down in Schedule II to the CPC would apply. A decree was passed and against an order for execution of this decree there was

an appeal which was eventually decided by a Full Bench of this Court on the 25th January, (1944) 1 M.L.J. 290 The Full Bench held that because

the creditor was a limited company registered under the Indian Companies Act, the award must necessarily come under the provisions of the

Indian Arbitration Act of 1899 and not under the Code of Civil Procedure. As a consequence of this decision the arbitrator at the instance of the

respondent filed the award in the District Court on the 15th March, 1944. Notice was given and it was recorded that neither party objected to the

award and the award was filed. Thereafter the creditor proceeded to take out execution and in the execution, objection was taken that execution

was barred by limitation, because the petition was filed more than three years after the date of the original award. The executing Court overruled

this objection relying on the decision in Udaychand Pannalal v. Bhagirathlal Ghasi-prasad ILR (1935) Cal. 833 and directed execution to proceed.

Hence the appeal.

It seems to us that the objection on the ground of limitation cannot be sustained, having regard to the terms of Section 15 of the Arbitration Act

(IX of 1899) which runs as follows:

An award on a submission, on being filed in the Court in accordance with the foregoing provisions, shall (unless the Court remits it to the

reconsideration of the arbitrators or umpire, or sets it aside) be enforceable as if it were a decree of the Court.

It seems to us that the words "" on being filed "" indicate the point of time from which the award is deemed to be enforceable as if it were a

decree. The verb in the clause "" as if it were a decree "" is clearly in the present tense of the subjunctive mood. If the Legislature had intended that

the award should be deemed to have been a decree with effect from the date on which it was originally passed by the arbitrator, instead of the

word "" were "" we should expect to find the words "" had been"".

It is pointed out that the result of this construction is that there can be no limitation whatever for the filing of an award in Court and that it might

be possible to file in Court an award which was twenty years old without leaving open any objection to the parties on the ground of limitation,

provided that execution is taken within three years of the date of filing. That may be an anomalous result. But we are not concerned with the

consequences of a statutory provision when the language of it is plain and its meaning clear. It is the business of the Legislature and not of the

Judges to amend defective statutes. To our minds it is quite clear that the award only acquires the incidents of a decree when it is filed in Court and

in applying Article 182 of the First Schedule to Limitation Act the date of the decree or order cannot be any earlier than the date on which by

being filed into Court that which was a non-judicial decision becomes clothed with a judicial character as if it were a decree. We may also observe

that in our opinion even if this view were not correct, the respondent would be entitled to rely on Section 14 of the Limitation Act in the

circumstances of the present case.

In the result, therefore, the appeal is dismissed with costs.