Patna High Court
Shrichand Prasad vs Mohan Singh on 16 April, 1963
Equivalent citations: AIR1964PAT509, AIR 1964 PATNA 509
Author: N.L. Untwalia
Bench: N.L. Untwalia
ORDER N.L. Untwalia, J.
1. In this case, by the order under revision, a decree passed tinder Section 17 of the Arbitration Act, 1940, (hereinafter referred to as 'the Act'), has been set aside fay the Court below on the application of the 'opposite party purporting to be one under Order 9, Rule 13 of the Code of Civil Procedure. The petitioner filed an application in the Court below on the 22nd November, 1960, under Section 14 of the Act, which was registered as Miscellaneous Case No, 48 of 1960. Subsequently, it was converted into a title suit numbered as Title Suit 81 of 1960. Summons in the suit, meaning thereby the notice of the application under Section 14, is said to have been served on the opposite party on the 27th December, 1960, as also on the Head Punch. The latter filed the Award in Court on the 10th March, 1961.
Thereafter, according to the petitioner's case, as it appears from his civil revision application, notice of the filing of the Award was issued and was served on the opposite party on the 2nd April, 1961. In spite of the said service of notice of the filing of the Award, he did not appear and file any objection or an application to set aside the Award. Decree followed on the basis of the award under Section 17 of the Act, on the 17th April 1961. Thereafter, on the 7th October, 1961, the opposite party filed an application under Order 9, Rule 13, of the Code of Civil Procedure for setting aside the ex-parte decree on the ground that summons was suppressed and was not served on him and that he learnt about the ex-parte decree on the 15th September, 1961. The learned Subordinate Judge has held that notice of the filing of the Award was not served on the opposite party either on the 2nd April 1961, as alleged, or ever. In that view of the matter, he has set aside the ex parte decree.
2. The argument put forward on behalf of the petitioner is that a decree passed in terms of Section 17 of the Act cannot be set aside under 0. 9, Rule 13, of the Code of Civil Procedure. Even if it can be so done, it could not be done in this case without giving a finding in regard to the service of summons, that is to say, the service of notice of the application under Section 14 of the Act, on the opposite party on the 27th December, 1960, and without accepting his case of knowledge of the ex parte decree, on the 15th September, 1961.
3. On reading the relevant provisions of the Act, it seems that the first point urged on behalf of the petitioner has got force. The provision of Order 9, Rule 13, in terms, is not attracted to a case where a decree has been passefl on the basis of the Award without service of notice to the parties concerned of the filing of the Award. But it is clear to me that the passing of the decree in such a situation is without jurisdiction, as Section 17 provides that the Court shall, after the time for making the application to make an award has expired, proceed to pronounce judgment according to the Award. Under Art. 158 of the Indian Limitation Act, the time for making an application to set aside the award, expires on the expiry of 30 days from the date of service of the notice of the filing of the Award; and on the finding of the Court below, the time never began to run as no notice of the filing of the Award was served on the opposite party. Therefore, it never expired. That being so, the Court could not pronounce judgment according to the Award and no decree could follow upon the judgment so pronounced. It is also clear to me that such a decree could not be set aside in appeal on the ground on which it has been set aside by the Court below, as the right of appeal under Section 17 is a limited one. It is provided in that Section that "no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award", if the contention put forward on behalf of the petitioner that the party against whom such a decree has been passed had no remedy under Order 9, Rule 13, of the Code of Civil Procedure, for getting it set aside and, as I have said above, has no remedy of attacking the decree in appeal it is obvious that the Court will have inherent power to set aside the decree, if it comes to the conclusion that it has been passed upon a judgment pronounced without giving notice to the party concerned of the filing of the Award.
In that view of the matter, the alternative submission made on behalf of the petitioner does not merit any consideration. Even assuming that the first and the main point submitted on behalf of the petitioner is not correct, and the provisions of Order 9, Rule 13, are directed for giving the relief asked for by the opposite party, I am of the view that, on the facts and circumstances of the case, I shall not be justified in upsetting the order of the Court below in exercise of my revisional powers.
4. In the result, the application fails and is dismissed, but I will make no order for costs.