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1997 Supreme(Pat) 414
PATNA HIGH COURT
M.Y.Eqbal, J.
National Insurance Company Limited
Versus
Santibir Singh
Appeal from Original Order No. 40 of 1989 ;
Decided On : MAY 20, 1997
The court has inherent power to recall/set aside an order by which the Award of the Arbitrator is made Rule of the court without considering the objection filed under Sec. 30 of the Arbitration Act, 1940.
Headnote:
ARBITRATION - SETTING ASIDE AWARD - INHERENT POWER OF COURT - COURT CAN RECALL/SET ASIDE ORDER MAKING AWARD RULE OF COURT WITHOUT CONSIDERING OBJECTION FILED UNDER SEC. 30 OF ARBITRATION ACT, 1940.
Fact of the Case:
The appellant filed an objection under Sec. 30 of the Arbitration Act, 1940 challenging the validity of the Award. The court below passed an order making the Award Rule of the court without considering the objection. The appellant filed a petition under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte order.
Finding of the Court:
The court held that the court under its inherent power can recall/set aside an order by which the Award of the Arbitrator is made Rule of the court without considering the objection filed under Sec. 30 of the Arbitration Act, 1940.
Issues: Whether the court under its inherent power can recall/set aside an order by which the Award of the Arbitrator is made Rule of the court without considering the objection filed under Sec. 30 of the Arbitration Act, 1940.
Ratio Decidendi: The court relied on Sec. 17 of the Arbitration Act, 1940 which casts a duty on the court to consider the objection and comply with other requirements before pronouncing judgment and making the Award Rule of the court. If the same has not been done then in the court's opinion, the court can under its inherent jurisdiction under Sec. 151 of the Code recall or set aside the order.
Final Decision: The appeal was allowed, the impugned order was set aside, and the matter was remitted back to the court below with a direction to consider the application filed by the appellants under Sec. 151 of the Civil Procedure Code and pass appropriate order in accordance with law.
M.Y.Eqbal, J.
1. The important question that arises for consideration in this appeal is as to whether the court under its inherent power can recall/set aside an order by which the Award of the Arbitrator is made Rule of the court without considerings the objection filed under Sec. 30 of the Arbitration Act, 1940 (hereinafter to be referred to as "the Court" for short).
2. Before deciding this question it would be useful to state some relevant facts which resulted in passing of that order.
3. The plaintiff-respondent No. 2 filed an application under Sec. 20 of the Act before the court of the Subordinate judge, Palamu, against the defendants-appellants which was registered as Title Suit No. 72 of 1985. The learned court below ultimately referred the matter to the Arbitrator and later after hearing the parties published the Award and filed the same in court. The appellant (defendant No. 2) filed his objection on 22.12.1986 under Sec. 30 of the Act challenging the validity of the Award. The learned court below passed an order dated 22.12.1986 adjourning the case to 6.1.1987 for hearing on the said objection. On 6.1.1987 the appellants could not appear, consequent thereupon the learned court below without considering the objection made the Award Rule of the court. The appellants thereafter on 5.2.1987 filed a petition under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte order dated 6.1.1987 passed in Title Suit No. 72 of 1985. The said application was registered as Mies. Case No. 3 of 1987. The learned court below dismissed the said Misc. Case by the impugned order on the preliminary point that the petition was not maintainable as according to the learned court below the only course open to the appellants is to file an appeal before the High Court.
4. I have heard Mr. Tapan Sen, learned Counsel for the appellants, and Mr. Manjul Prasad, learned Counsel appearing for the plaintiffs-respondents.
5. Mr. Sen firstly submitted that the learned court below totally misconstrued that law and has failed to appreciate that when an ex-parte order is passed making the Award Rule of the Court, the court has inherent power to set aside the order.
6. On the other hand Mr. Manjul Prasad submitted that the learned court below was perfectly right in holding that provision of Order IX, Rule 13 of the Code does not apply and once the Award is made Rule of the court under the said Act, the only remedy available to the aggrieved party is to file an appeal before the High Court. In this connection learned Counsel relied upon a decision of this Court in the case of Babu Basant Lai V/s. Babu Surendra Prasad and Ors. reported in 1957 BLJR 94.
7. From perusal of the application filed by the appellants under Order IX, Rule 13 read with Sec. 151 of Code of Civil Procedure it appears that the appellants very elaborately stated about the causes for non-appearence on 6.1.1987 when the impugned order making the Award Rule of the court was passed. It was, inter alia stated that on 22.12.1986 the case was adjourned to 6.1.1987. Since the X-Mas holdings intervened, the appellants lawyer, Sri S.K. Dutta went to Calcutta during the holidays. But the said lawyer could not return to Daltonganj on 6.1.1987 as his daughter all of the sudden fell seriously ill at Calcutta and he had to remain there till 7.1.1987 for treatment of his daughter and in short time the lawyer could not inform the above circumstances to the appellants. However, on 8.1.1987 when the said lawyer returned to Daltonganj, he came to know that the court has passed an ex-parte order on 6.1.1987 confirming the Award.
8. As indicated above, although objection was filed by the appellants within time for setting aside the Award the. learned court below without considering the objection petition passed the order on 6.1.1987 making the Award Rule of the court.
9. Sec. 17 of the Act lays down the provision for passing the judgment in terms of the Award.
According to this
