PATEL PURSHOTTAMDAS MOTILAL Vs. PATEL CHHOTABHAI MOTIBHAI

JUDGEMENT

(1.) . The plaintiff and the defendant are brothers. On 15th September 1955 partition of the joint family estate between them was effected. Plaintiff thereafter was running Bidi business. On account of some physical handicap he was unable to run it. Therefore he authorized the defendant to run it on his behalf and executed in that behalf a power of attorney dated 19th September 1956. For 17 years the defendant carried on the plaintiffs business. The plaintiff in 1973 found that the defendant had been mismanaging the business. He therefore cancelled his power of attorney on 23rd March 1973 Disputes arose between the parties in the matter of the plaintiffs business which was run by the defendant for 17 years. They therefore agreed on 6th April 1973 to refer the disputes to an arbitrator. The disputes were referred to the arbitrator. The arbitrator did not make award and therefore that arbitration failed. Thereafter Suit No. 38 of 1974 was filed under sec. 20 of the Arbitration Act 1940 for direction that arbitration agreement be filed in Court. It was decreed. Thereafter disputes were referred to the arbitrator. On 21st September 1977 the arbitrator made his award. On 23rd September 1977 the arbitrator gave the parties notice that he was filing the award in Court. On 26th September 1977 it was filed in Court. Within 30 days thereafter the parties were required to file objections. The plaintiff however made several applications for time to file his objections. Ultimately he filed them on 7 December 1977. The learned trial Judge dismissed them on the ground that they were barred by limitation.

(2.) IT is that order which is challenged in the first appeal as well as in the Civil Revision Application. The Civil Revision Application has been filed on the assumption that the first appeal may not be maintainable.

(3.) THE next decision to which reference has been made is more apposite. In Kawalsing Akbar v. Raldeosingh Akbar AIR 1957 Nagpur 57 the question whether sec. 5 was applicable to an application for setting aside an award directly arose. A Division Bench of the Nagpur High Court laid down that sec. 5 of the Limitation Act 1908 did not apply to such applications under the Arbitration Act 1940 and that therefore sec. 5 could not be invoked for extending time for making an application to set aside the award. A perusal of that decision shows that sec. 5 of the Limitation Act 1908 could not be invoked because it was not made applicable to such applications under the Arbitration Act. It is therefore necessary to turn to sec. 5 of the Limitation Act 1908 It provided as follows: