Smt. Chinto and Others vs Yogesh Aggarwal and Another

K. Kannan, J.—The revision is against the order of rejection of a petition filed u/s 151 of the CPC to set aside the award passed by the Court on 05.06.1991. The said decree was a decree passed in terms of the award said to have been passed by the Arbitrator on a day previous to the date of the decree passed by the Court. The decree records the presence of the plaintiff and defendant as well as the Arbitrator and when a decree was passed making a division of the property as per the award of the Arbitrator, it was done in the presence of counsel Sh. Yogesh Kumar on behalf of the plaintiff and Sh. G.S. Saini as counsel appearing on behalf of the defendants. The Arbitrator himself has appeared in person. The application is filed by the defendants contending that the award came to be made by deceit and the decree was also obtained by fraud and they came to know about the fraud when the possession with reference to the property was sought to be disturbed by the plaintiff on the basis of award which culminated in the decree. It was at that time when they came to know about the award and there fore, according to the petitioners, the application was filed u/s 151 to set aside the award. I find the whole exercise to be erroneous. The decree, which was passed on 05.06.1991 cannot be declared as null and void through an application u/s 151. Section 151 CPC itself can be invoked only when there are no specific provisions under the Act to secure the relief which is sought. An award which is passed under the Arbitration Act, 1940 does not become enforceable unless the matter is brought before the Court and notice is given to all parties to state their objections. The procedure under the act of 1940 is that after an award is filed into Court, the Court is required to issue notice and after hearing objections it has power to modify the award for the reasons set forth u/s 15. Section 16 sets out the power of the Court to remit the matter for consideration before the Arbitrator himself for the reasons set forth under the said Section. Section 17 empowers the Court to pass a judgment in terms of the award. In this case, the judgment was said to have been delivered and decree passed in terms of the award after recording the presence of the parties through their respective counsel. Once a decree is passed the award becomes final and it cannot be challenged by any procedure other than by resort to Arbitration Act. The Court has no inherent power in such a situation.

The power to set aside the award is available u/s 30 of the Arbitration Act, 1940 where clause (c) provides that where an award has been improperly procured or otherwise invalid it could be set aside. Even a challenge that the Arbitrator has mis-conducted himself could be a ground u/s 30. An independent suit to contest the decree itself may be barred u/s 32 but it is no ground to say that the remedy is only Section 151 CPC as urged by the counsel appearing on behalf of the petitioner. Section 32 itself does not bar all types of cases. The provision enacted u/s 32 cannot apply where on the allegation made in the plaint, a plaintiff''s right to relief is not to any extent dependent on the validity of the arbitration agreement or the award itself. If the plaintiff has a right to sue for any relief arising from title of the property independent of any right arising under the agreement even then the suit cannot be said to be one to enforce the arbitration agreement. The suit, which is prohibited u/s 32 must be one in respect of which a relief is possible through an application filed u/s 33. Section 33 enables any party to an arbitration agreement or any person claiming under such a person, who is desirous of challenging the existing or otherwise of the arbitration agreement or an award to have a right to apply to the Court for an adjudication by filing an affidavit. If the contention were to be that the award itself was secured by impersonation or by some deceit, it has to still come within the four corners of the Arbitration Act itself for securing the relief. Independently thereof except to the extent to which Section 32 itself may be excluded, the party cannot have any relief. The application filed u/s 151 CPC was, therefore, untenable and was correctly dismissed. The revision is without merit and it is dismissed as such.