The Court emphasized the jurisdiction of the Court to set aside a decree passed under Sec.17 without the service of notice of the filing of the Award, and highlighted the inherent power of the Court to set aside such a decree.

N.L.Untwalia, J.

1. In this case, by the order under revision, a decree passed tinder Sec.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 Sec.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 Sec.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 petitioners 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 Sec.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 Sec.17 of the Act cannot be set aside under Or. 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 Sec.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 Sec.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 Sec.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 Civi