MOHAMED ESOOF Vs. V RSUBRAMANYAM AND

JUDGEMENT

(1.) THIS appeal 'arises from arbitration proceedings in which the present Respondent 1 was the sole arbitrator and the present Appellant and Respondent 2 were the two parties referring the dispute between them to the arbitrator. The latter filed an application under Sections 14 and 17 of the Arbitration Act. 1940, to the District Court, Bangalore, for a judgment and decree in terms of the award being pass-ed after notice to the parties. The Appellant objected to the award on various grounds and prayed "that the award be declared a nullity or that it be set aside and if for any reason the Court did not do so to remit the award to the arbitrator for a proper adjudication or in the alter-native to modify or correct the award. Respondent 1 controverted the grounds and allegations raised in the statement of the Appellant and supported the prayer of the arbitrator. Though the case was posted for evidence and evidence was recorded, the learned Judge disposed of the matter on the question of limitation which presumably was raised at the time of arguments. He held that the objections raised by the Appellant were barred under Article 158 of Schedule I of the Limitation Act and passed judgment in accordance with the terms of the award and directed that a decree should follow. In this appeal, it is urged that the objection statement was not barred by time and that, in any event, Article 158 of the Limitation Act had no application to the alternative prayer made by the applicant for the modification of the award and that that matter at least should have been dealt with by the Court below.

(2.) AS mentioned above, the Appellant in his statement before the Court below claimed three alternative reliefs, i.e., setting aside the award, remitting the award for a proper adjudication or modifying the award. Under Section 39 of the Arbitration Act, while an appeal lies against an order refusing to set aside an award, no appeal lies against an order refusing to modify or correct an award, though an appeal does lie against an order modifying or correcting an award. It therefore follows that we cannot in this appeal consider the point raised by the Appellant that the Court below should have gone into the question whether the award should be modified or not. The only question for consideration, therefore, is whether the Appellant's objection in so far as it took the form of a claim for relief by way of setting aside the award was barred by time. Article 158 of Schedule I of the Limitation Act, as it stands now, fixes a period of 30 days from the date of service of the notice of filing the award for any application to set aside an award or to get an award remitted for reconsideration. It is not disputed that the arbitrator's application under Sections 14 and 17 of the Arbitration Act was presented to the Court below on 1-1-5-52, that notice was served on the Appellant on 27-5-52 and that the latter's objection statement was filed on 14-7-52, i.e. 48 days after the service of the notice. It was therefore beyond time in so far as setting aside the award or remitting it for consideration was concerned.

(3.) THE learned Advocate for the Appellant has asked us to treat this appeal as a revision petition in so far as the question of modifying the award is concerned. It does not appear to us to be appropriate to deal with a part of the matter raised before us as an appeal and another part on the footing that it comes under revision.