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 consideration of the objection filed under Section 30 of the Arbitration Act, 1940.

M. Y. Eqbal, J

1. The important question aries for consideration in this appeal is an to whether the court under its inherent power ca recall/set aside an order by which the Award of the Arbitrator is made Rule of the Court without consideration of the objection filed under Section 30 of the Arbitration Act, 1940 (hereinafter to be referred to as "the Act" 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 Section 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 latter 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 Section 30 of the Act challenging the validity of the Award. The learned Court below passed on order dated 22-12-1986 adjourning the case to 6-1-1987 for hearing on the said objection. On 6-1-1987 the appellant could not appear, consequence thereupon the learned Court below without considering the objection made the Award Rule of the Court. The appellants thereafter on 5-2-1987 a petition under Order XX, 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 Misc. Case No. 3 of 1987. The learned Court below dismissing 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 appellant is to file an appeal before the High Court.

4. I have heard Mr. Tapen Sen, learned counsel for the appellants, and Mr. Manjul Prasad, learned counsel appearing for the plaintiff-respondents.

5. Mr. Sen firstly submitted that the learned Court below totally misconstrued the law and has failed to appreciate that when 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 provision of Order 9 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 Lal v. Babu Surendra Prasad (AIR 1957 Patna 417.).

7. From perusal of the application filed by the appellants under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure it appears that the appellants very elaborately stated about the case for non-appearance 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 holidays 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 a sudden fell seriously ill at Calcutta and he 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. Section 17 of the Act lays down the provision for passing the judgment in terms of the Award. According to this section the Court before who