The court has the power to grant time to file a petition for setting aside an award or for remitting the award for reconsideration, and also the power to condone the delay in filing such a petition

John Mathew, J.

Respondents 1 and 2 in O.P. (Arbitration) No. 110/88 before the Sub Court, Kollam are the appellants. Certain disputes between the appellants and the respondent were referred for arbitration by the Chief Engineer (Arbitration). The arbitrator after consideration of the case, passed an award on 1-6-1988. The award was filed before the lower court. The respondent herein filed an application under S.17 of the Arbitration Act praying to accept the award and to grant a decree in terms of the award. That application was filed on 6-9-1988. As seen from the B diary it was registered on 7-9-1988 and numbered as O.P. 110/88. Notice was ordered on 9-9-1988. Notice was made returnable on 18-11-1988. The 1st respondent (1st appellant herein) received notice on 21-10-1988 and the 2nd respondent (2nd appellant herein) received notice on 4-11-1988. Respondents entered appearance on 18-11-1988. They prayed for time to file objections and the petition was posted to 13-1-1989. On 6-12-1988 the appellants filed LA.2559/88 under V S.30 of the Arbitration Act praying to set aside the award.

2. On 13-1-1989 the appellants filed objections. Thereafter the petition was adjourned about 29 times. Ultimately by order dated 9-12-1991 the lower court dismissed I.A.2559/88 and a decree in terms of the award was passed by the order now challenged in this appeal. The only ground stated in the order of the lower court was that the objection by way of I.A.2559/88 was dismissed as barred by limitation and there is no petition to condone the delay. In the order on I.A.2559/88 the lower court has given the same reason that it was time barred.

3. Therefore, the only question is whether the court has power to grant time to file a petition for setting aside an award or for remitting the award for reconsideration.

4. Under Art.119(b) of the Schedule to the Limitation Act, 1963 the period of limitation for setting aside an award or getting an award remitted for reconsideration is thirty days from the date of service of the notice of the filing of the award.

5. S.37(1) of the Arbitration Act, 1940 is as follows:

"37. Limitations.-(1) All the provisions of the Indian Limitation Act, 1908 (9 of 1908), shall apply to arbitrations as they apply to proceedings in Court."

It has to be observed that S.37 requires amendment in view of the enactment of the Limitation Act, 1963 (Act 36 of 1963). Amendment is required for the added reason that there is difference between S.5 of the 1908 Limitation Act and S.5 of the 1963 Limitation Act. Section 5 of the Limitation Act, 1908 is as follows:

"5. Extension of period in certain cases.- Any appeal or application for a review of

judgment or for leave to appeal or any other application to which this section may be made applicable (by or under any enactment) for the time being in force may be admitted after the period of limitation prescribed there for, when the appellant or applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."

6. Under the Limitation Act of 1908, S.5 cannot be invoked to condone the delay in respect of an application seeking to set aside an award presented beyond time. However, S.5 of the Limitation Act, 1963 would apply to such cases also as the section is applicable to all applications other than those under O.XXI C.P.C. (see Ram Piyari v. Budh Sen -AIR 1977 AII.390 and Union of India v. M/s. Builders Union - AIR 1981 Ori.188).

7. Section 5 of the 1963 Limitation Act is as follows:

"5. Extension of prescribed period in certain cases - Any appeal or any application other than an application under any of the provisions of O.XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." (Explanation omitted)

8. By S.3 of the Limitation