KASNA RUPLA Vs. MAKAN KHUSAL

JUDGEMENT

(1.) An award was passed ex-parte and an application for reopening the award under sec. 36 of the B. A. D. R. Act was rejected by the Civil Judge Junior Division Vyara on the ground that the application was time barred although he expressed the view that there were sufficient reasons for re-opening the award on merits. In appeal this order was confirmed.

(2.) In revision it is urged that the view taken by the Civil Judge Junior Division Vyara that the Article of the Limitation Act applicable to the application is article 164 of schedule I and not article 181 of schedule I of the Limitation Act. Article 164 of schedule I of the Limitation Act reads as follows :- @@@ By a defendant for an Thirty Days The date of the decree or order to set aside a where the summons was not decree passed ex-parte. duly served when the applicant has knowledge of the decree. Article 181 of schedule I reads as follows : Application for which Three years When the right to apply no period of limitation accrues. is provided elsewhere in this Schedule or by sec.48 of the Code of Civil Procedure 1908 (V of 1908).

(3.) The application made under sec. 36 of the B. A D. R. Act for re-opening an award is not an application given under Order 9 Rule 13 C. P. Code to set aside an ex-parte decree. There is a special provision in sec. 36 of the B. A. D. R. Act for re-opening ex-parte awards. An award is not a decree because an award is passed in an application of the adjustment of debts and not in a civil suit. The procedure for executing an award is a special one and is contained in sub-sec. (3) of sec. 38 of the B. A. D. R. Act. An award is not a decree as defined in sec. 2 of the Civil Pro. Code because an application for the adjustment of debts is not a suit. It is true that sec. 46 of the B. A. D. R. Act provides that Save as otherwise expressly provided in the B. A D. R. Act the provisions of the Code of Civil Procedure 1908 shall apply to all proceedings under Chapter 11 of the B. A. D. R. Act. But this does not deal with the question whether a proceeding under the B. A. D. R. Act is a suit or an application and whether an award passed under that Chapter is a decree. The question whether an award is a decree has not been dealt with in Chaturbhai Nathubhai Patel v Ramamlal Maganlal Shah 59 Bom. L.R. 689 relied on by the learned counsel for the opponents In Mangilal v. Shivaram A.I.R. 1956 Bombay 755 it was observed that Order 9 Rule 13 Civil Procedure Code cannot be invoked to set aside an ex-parte order passed under sec. 24 of the B. A. D. R. Act. It is therefore clear that Article 164 of schedule I of the Limitation Act does not apply where an application is made for re-opening an award under sec. 36 of the B. A. D. R. Act and the Article applicable is Article 181 of schedule I of the Limitation Act. In this view the Courts below erred in applying a wrong Article of the Limitation Act.