Venkatarama Ayyar, J.-

The question that is raised in this appeal is whether section 5 of the Limitation Act is applicable to an application filed under the Indian Arbitration Act to set aside an award. In certain arbitration proceedings to which the appellant was a party an award was pronounced and it was filed on the original side of this Court in O.P. No. 66 of 1951. Notice of this petition was served on the appellant on 27th March, 1951. Article 158 of the Limitation Act provides that an application to set aside an award should be filed within 30 days from the date of the service of the notice of filing of the award. The appellant did not file any application to set aside the award within the time limited by Article 158. The High Court was closed for summer recess on the 28th April, 1951 and on the day of reopening the appellant filed Application No. 2355 of 1951 under section 5 of the Limitation Act for excusing the delay in filing the application to set aside the award. That application was dismissed by Krishnaswami Nayudu, J., on the ground that section 5 of the Limitation Act was inapplicable, and this appeal has been brought against that order of dismissal.

Section 5 of the Limitation Act runs as follows:

“Any appeal or application for a review of judgment or for leave to appeal or any other replication to which this section may be applicable by or under any enactment fcr the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicat satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period.”

As we are concerned in these proceedings with an application to set aside an award, the only question to be determined is whether there is any enactment which had made section 5 applicable to such proceedings.

Before the Arbitration Act of 1940 the law was well settled that the Court had no power under section 5 of the Limitation Act to extend the time prescribed by Article 158 for filing an application to set aside an award. That was held by Mookerjee and Holmwood, JJ., in Surja Narain v. Bunwari Jha1 and that view was followed by the Lahore High Court in Devi Ditta v. Balu Ram2. The learned Advocate for the appellant does not dispute the correctness of the law as laid down in those decisions. What he contends is that the law has been changed by the Arbitration Act, and under section 37(1) of the Act properly construed, section 5 of the Limitation Act would be applicable to an application to set aside an award. Section 37(1) runs as follows:

“All the provisions of the Indian Limitation Act, 1908, shall apply to arbitrations as they apply to proceedings in Court.”

The question is, what is the precise meaning of the word “Arbitration” in this section? The contention of the appellant is that arbitration proceedings mentioned in the section include not only proceedings before the arbitrators, but also applications taken out for filing the awards in Court or for setting them aside. He contends that they are also arbitration proceedings and that by virtue of section 37(1) the provisions of the Limitation Act including section 5 will apply. He relied upon certain observations of the Privy Council occurring in Ram Dutt Ram Kissen Dass v. E.D. Sasoon and Co.3 as supporting this position. The facts in that case were these. There were certain arbitration proceedings which resulted in an award. But that award was set aside. Subsequently the applicant commenced fresh arbitration proceedings with reference to the same subject-matter. The opposite party pleaded that at the time of the new proceedings an action by the applicant would be barred and that therefore no relief should be granted to him in arbitration proceedings. The applicant pleaded that he was entitled to the benefit of section 14 of the Limitation Act and to deduction of the time taken in the prior arbitration proceedings. It was this question that came up for co

Click Here to Read the rest of this document