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1962 Supreme(Raj) 274
Rajasthan High Court
Modi & Chhangani, JJ.
Radha Kishan - Appellant
Versus
Nathmal Bubna - Respondents
D.B. Civil Reference No. 10 of, 1961
Decided On : December 20, 1962
C.L. Agarwal, for petitioner; R.K. Rastogi, for respondents
Headnote:Civil P. C, Sec. 115—In which no appeal lies—Application under Sec. 33 of Arbitration Act—Revision from order entertaining application and on point of limitation not competent as same appealable tinder Sec. 3911) (iv) Arbitration Act.
An application was made by N. with a prayer that the award made by one F. in a dispute between him and the petitioners here, who were opposite parties in the trial court, he declared to be invalid, illegal and inoperative and should, therefore, be set aside. This application was made under section 33 of the Arbitration Act. Along with this application a further application was also made on the same day under section 14(2) of the Arbitration Act praying that the arbitration agreement and the award be sent for from the said arbitrator and that he be ordered to file the same in court. These applications were inter alia opposed by the petitioners as barred by time and as being non-maintainable. Thereafter, the opposite party here withdrew its application under section 14(2) of the Arbitration Act and maintained that it was unnecessary to get the award filed in court under section 14(2) of the Act as it was attacking the award as a nullity and all that it wanted to be done was that the award should be summoned by the arbitrator as evidence for the purposes of Article 33 of the Arbitration Act. It was also contended for a purpose like that that no limitation had been provided under the Limitation Act. In these circumstances, the two questions which arose before the trial court were, whether the application filed by the opposite party under section 33 of the Arbitration Act was maintainable and whether it was not barred by time. The learned trial Judge held that the application filed by the opposite party before him was one under section 33 challenging the validity of the arbitration agreement and the award and praying for setting aside of the award and therefore, such an application was governed by Art. 181 of the Limitation Act and not by Art. 178. He further held that an application for setting aside an award was not dependent on an application for filing the award, and that all that was necessary was that the award should have been before the court, before it was called upon to set it aside and as the petitioner before him had himself subsequently produced the award, the bar of Art. 158 or Art. 178 would not arise, and the application filed before him for setting aside the agreement as well as the award was maintainable.
A revision was then filed by the petitioners here against the aforesaid order which came for disposal before a Single Judge which has resulted in the present reference. (para 2)
Held that the decision of the trial court on the points decided by it against the petitioners are such that it can be properly postulated of them that they affect the decision of the case on the merits. Both the questions, namely, of limitation and of the maintainability of the application are questions which do affect the decision of the case in that manner. (para 5)
Held further, that an appeal from the final order of the trial court, after all the issues therein have been decided will be to this Court, and as has been held above, the findings on the questions which have been decided by that court against the petitioners will be perfectly capable of being contested in this Court as being questions affecting the merits of the case in appeal before this Court. (para 6)
2. In view of the conclusion at which we have arrived as regards the competence of this reference, it is necessary to set forth a few facts:—
On the 22nd of February, 1957, an application was made by Nathmal Bubna, respondent here, with a prayer that the award made by one Fateh Chand Paliram Jhunjhunuwala in a dispute between him and the petitioners here, who were opposite parties in the trial court, be declared to be invalid, illegal and inoperative and should, therefore, be set aside. This application was made under sec. 33 of the Arbitration Act. Along with this application a further application was also made on the same day under sec. 14(2) of the Arbitration Act praying that the arbitration agreement and the award be sent for from the said arbitrator and that he be ordered to file the same in court. These applications were inter alia opposed by the petitioners as barred by time and as being non-maintainable. It was contended in this connection that the application for the filing of the award had been made after 90 days of the date of the service of the notice of the making of the award and was, therefore, barred by Art.l78 of the Limitation Act and further that the application for the setting aside of the award was not maintainable because such an application could only be made under Art. 158 within 30 days of the service of the notice of the filing of the award which award had never been filed and the filing whereof was barred by time. Thereafter, the opposite party here withdrew its application under sec. 14(2) of the Arbitration Act and maintained that it was unnecessary to get the award filed in court under sec. 14(2) of the Act as it was attacking the award as a nullity and all that it wanted to be done was that the award should be summoned by the arbitrator as evidence for the purposes of Art, 33 of the Arbitration Act. It was also contended that for a purpose like that no limitation had been provided under the Limitation Act. In these circumstances, the two questions which arose before the trial court were, whether the application filed by the opposite party under sec. 33 of the Arbitration Act was maintainable and whether it was not barred by time. The learned trial Judge held that the application filed by the opposite party before him was one under sec. 33 of the Arbitration Act challenging the validity of the arbitration agreement and the award and praying (for setting aside of the award, and, therefore such an application was governed by Art. 181 of the Limitation Act and not by Art. 178. He further held in this connection that an application for setting aside an award was not dependent on an application for filing the award, and that all that was necessary was that the award should have been before the court, before it was called upon to set it aside and as the petitioner before him had himself subsequently produced the award, the bar of Art. 158 or Art. 17B would not arise, and the application filed before him for setting-aside the agreement as well as the award was maintainable. In this view of the matter, the learned Judge fixed a date for the summoning of the arbitration agreement and for further proceedings in the case. A revision was then filed by the petitioners here against the aforesaid order which came for disposal before a learned Single Judge which has resulted in the present reference.
3. A preliminary objection was raised before the learned Single Judge that the revision was not maintainable inasmuch as the points decided by the trial Judge against the petitioners before the High Court could well be raised in an appeal which could be brought to this Court under sec. 39(1)(vi) of the Arbitration Act. This objection seems to be apparently based on a Full Bench decision of this Cour
