Patna High Court
Parmeshwar Yadav And Ors. vs Misri Lal Yadav on 1 August, 1973
Equivalent citations: AIR1974PAT67, AIR 1974 PATNA 67
JUDGMENT H.L. Agrawal, J.
1. This is an application in revision bv the defendants challenging the order of the learned Munsif who has accepted the award and passed a Judgment according to the same in the following circumstances.
2. A title suit for declaration of title and recovery of possession with respect to certain lands was filed bv the plaintiff-opposite party in the Court of the Second Munsif at Monghvr. With consent of the parties the dispute was referred to some arbitrators bv order dated 3-9-1965 and the award was filed in Court on 4-6-1966 by them. It was not a date fixed in the suit. On 6-7-1966, the date fixed in the suit, the learned Munsif without having earlier issued any notice to either of the parties of the filing of the award, directed them to file objections, if any, to the award bv 18-7-1966, On that date, as no abjection was filed to the award, he confirmed the award and directed to make the same a rule of the Court. Against the above order an appeal was filed by the defendants before the District Judge. Monghvr who allowed the same. The plaintiff thereupon filed a second appeal bearing No. 83 of 1968 in this Court against the above decision and a Bench of this Court allowed the second appeal and set aside the Judgment of the District Judge on the ground that the appeal before him was incompetent. The defendants thereafter have filed the present revision application against the order of the learned Munsif dated the 18th of July. 1966.
3. Mr. Rama Kant Varma has challenged the validity of the said order on the ground that the award was confirmed bv the learned Munsif without waiting for the period of thirty days to enable the petitioners to file objections to the same. Article 158 of the old limitation Act corresponding to Article 119 of the new Limitation Act prescribes a period of thirty days for filing an application for setting aside an award. This position is not disputed. Section 17 of the Arbitration Act lays down the procedure as to how an award is to be made a rule of the Court. It lavs down as follows:--
"Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it. proceed to pronounce Judgment according to the award, and upon the Judgment so pronounced a decree shall follow ....."
The Provisions of Section 17 to the effect that the Court shall, after the time for making an application to set aside the award has expired, pronounce the Judgment according to the award, in my opinion, definitely lav down that the Court has to wait for the time prescribed by the Limitation Act for making an application bv either of the parties, for setting aside the award, if any. and only after refusing the said application, if filed, he is entitled to pronounce the Judgment according to the award. Obviously the learned Munsif in this case granted a time lesser than, thirty days as prescribed bv the Limitation Act and thereby has taken away the valuable right of the petitioners to file their objection for seting aside the award.
4. Mr. Kaushal Kishore Sinha appearing for the Plaintiff-Opposite Party, however, submitted that the order of the learned Munsif amounted to a mere irregularity and this Court should not interfere in the revisional Jurisdiction. Learned Counsel put reliance upon two decisions (1) Bwankev Lal v. Chotey Miayan Abdul Shakur. (AIR 1931 All 4,53), find (2) Peravva v. Subba Rao. (AIR 1961 Andh Pra 1591. The principles laid down in the aforesaid two decisions are of no assistance to the opposite partv in this case as they are clearly distinguishable.
The Allahabad case was before the coming into force of the Arbitration Act of 1940 where a period of only ten davs was fixed for filing such objections. In that case the award was filed on 16-1-1928 and the suit had already been posted for hearing, by an ealier order, on 31-1-1928 on which date when the matter was taken up for hearing neither of the parties indicated that the hearing should he postponed as they had to file any objection and the matter was taken up and decided and a Judgment was pronounced in terms of the award. Therafter a point was taken that the Court was bound to give full ten davs time to the parties. Taking the circumstances and the facts of that case into consideration that the party had not indicated to the trial Court that thev had to file anv objection and thev having participated in the hearing of the suit it was held that this irregularity of granting a lesser time than that fixed bv the statute did not require any interference.
In the Andhra Pradesh case the situation was still different. The award in this case was filed in Court on 22-11-1945 and on 26-11-1945 the appellant who went to the Hieh Court, namely, defendant No. 21. stated to the Court in person that he had no objection to the award. Similar statement was made on behalf of the plaintiffs also and all the other defendants also said that thev had no objection. As all the parties had no objection, the Court after due satisfaction Pronounced a Judgment in conformity with the award on 26-11-1945 without waiting for the expiry of thirty days prescribed bv the statute for setting aside the award. Thereafter an objection was taken that the decree was invalid having been passed without waiting for the prescribed period of thirtv days. The learned Judges of that Court on considering the Scheme of the Arbitration Act and on consideration of a large number of authorities that were cited before them came to the conclusion that the provisions of Section 17 of the Arbitration Act were merely directory and were intended for personal benefit of the litigations which could be waived bv the parties. The position, therefore, seems to be clear that in the present case when there was no indication bv either of the parties much less by the Petitioners that they did not intend to file any objection, the learned Munsif was bound in law to wait for the full period of thirty days as prescribed by the law of limitation. This position is manifest from the statute itself and in my opinion does not reauire anv authority in support nf the same. However, the Madras High Court in the Case of Esuf Rowther v. Davad Rowther. (AIR 1951 Mad 658) has clearly laid down that a duty is cast upon the Court to allow thirty days' time to lapse between the date of notice of filing of the award and the passing of a decree on the. basis of the award irrespective of the fact whether the parties applied for time or not for filing objections to the award. A decree passed on the basis of an award without allowing the requisite time to elapse was illegal and liable to be set aside.
5. Having examined the facts of the present case and on hearing learned counsel for the parties I am satisfied that the contention raised by Mr. Kaushal Kishore Sinha has no force and must be rejected. The learned Munsif has committed a material irregularity in exercise of his jurisdiction in passing the order dated the 18th of July. 1966. I would, therefore, set aside the order. The learned Munsif is directed to dispose of the title suit afresh in accordance with law after giving the parties a fresh opportunity of filing objections, if anv. to the award, This application in revision is accordingly allowed withcosts. Hearing fee Rs. 64/-only.