Judgement

BACHAWAT, J.: By a contract dated March 8, 1945, the appellant agreed to supply meat to the Government of India. The contract contained an arbitration clause for reference of disputes arising out of the contract to the officer named in the contract. The appellant claims that a sum of Rs. 8,38,994/10/6 is due to him in respect of the supplies of meat made by him during period between April 1, 1945 and March 31, 1946. He made representations to the Government for payment and for Arbitration of the disputes. On or about July 10, 1958, the Government refused to refer the matter to arbitration. On July it 1961 the appellant filed an application in the Court of the District Judge, Jhansi under Ss. 8 and 20 of the Arbitration Act, 1940 for filing the arbitration agreement and for an order of reference of the disputes to an arbitrator appointed by the Court. The respondent contended that the application was barred by limitation. The District judge allowed the application. He held that there was no period of limitation for making an application under Ss. 8 and 20. The defendant filed an appeal against the order. The High Court dismissed the appeal as incompetent in so far as it challenged the order under S. 8, and allowed it in so far as it challenged the order under S. 20. The High Court held that the application was governed by Art. 181 of the Indian Limitation Act, 1908 and was barred by limitation as it was made more than three years after the disputes had arisen. The appellant has filed this appeal after obtaining a certificate from the High Court.

2. The point in issue is whether an application under S. 20 of the Arbitration Act, 1940 is governed by Art. 181of the Indian Limitation Act. Since the decision in Bai Manekbai v. Manekji Kavasji, (1883) ILR 7 Bom 213 at p. 214 it is well settled that the operation of Art. 181 is limited to applications under the Code of Civil Procedure. In that case Westropp, C. J. after referring to the corresponding Art. 178 m the second schedule to the Limitation Act of 1877 observed:

"An examination of the other articles in the second schedule relating to "applications", that is to say, of the third division of that schedule, shows that the applications therein contemplated are such as are made under the Code of Civil Procedure. Hence it is natural to conclude that the applications referred to in Article 178, are applications ejusdem generis, i. e., applications under the Code of Civil Procedure. The preamble of the Act, moreover, purports to deal with "certain applications" only, and not with all applications."

This decision was followed in numerous cases and was approved in Hansraj Gupta v. Official Liquidator, Dehra Dun Mussoorie Electric Tramway Co., 60 Ind App 13 at p. 20. Having regard to these decisions, Das, J. said in Sha Mulchand and Co, v. Jawabar Mills Ltd., 1953 SCR 351 at p. 371. "This long catena of decisions may well be said to have as it were, added the words "under the Code" in the first column of that Article." The Court held that the amendment of Arts. 158 and 178 and the insertion of the words "under the Arbitration Act, 1940" in place of the words "under the Code of Civil Procedure, 1908" did not alter the settled meaning of Art. 181. To the same effect is the decision in Bombay Gas Co. v. Gopal Bhiva, 1964-3 SCR 709. Following these decisions the Court held in Wazirchand Mahajan v. Union of India, 1967-1 SCR 303 that an application under S. 20 of the Arbitration Act, 1940 not being an application under the Code of Civil Procedure was not governed by Art. 181.

3. The High Court has come to the conclusion that an application under S. 20 of the Arbitration Act is governed by Art. 181 for the following reasons: Article 181 should be construed as if the words "under the Code" were added in it. The Arbitration Act, 1940 repealed paragraph 17 of the second schedule to the Code and re-enacted it in S. 20 with minor modifications. That being so S. 8(1) of the General Clauses Ac