SURENDRA KUMAR TYAGI Vs. VIRENDRA KUMAR TYAGI

JUDGEMENT

(1.) - In the above-noted first appeal from order necessary facts are as below : Shri Sukhdev Sharma, advocate, arbitrarator, has filed an application for taking necessary action in respect of the award filed by him in the Court on 25-9-1989. The application moved by the arbitrator was registered as Original Suit No. 859 of 1989. Shri T. S Tyagi and Shri D. K. Tyagi have also filed a separate petition for making the award dated 1-9-1989 a rule of the Court and also for passing a decree in terms of the award. This application was registered as Misc. Case No. 186 of 1989. In this misc. case, the appellant Dr. S K. Tyagi moved an application numbered as 8C for granting 30 days' time to file objection against the award. Annexure V attached with the countrr affidavit of Sri Devendra Kumar Tyagi in the above noted appeal is the application moved by the respondents nos 3 and 4 for a prayer that the award dated 1-9-1989 filed by the arbitrator in the above-noted reference be made rule of the Court and a decree in terms of the award may kindly be passed. It is note-worthy that the award had not been filed in the above-noted reference (Misc. Petition No. 186 of 1989). Annexure VI to the counter affidavit is the photostat copy of the order sheet In Misc. Case No. 186 of 1989. It appears that the respondents nos. 3 and 4 had moved an application for making the award a rule of the court at the residence of the officer, who had invited objection on the arbitration award fixing 14-11-N89 for disposal On 15-11-1989 it appears that the prayer for time for filing objection was allowed by the officer concerned On 18-11-1989 it appears that an application numbered as 1OC was moved for fixing a nearer date. Objections were invited and the case was directed to be listed on for disposal of 1OC on 28-11-1989. On 28- 11-1989 1OC was allowed and 5-12-1989 was fixed for disposal of. It appears that due to strike and non availability of the presiding officer the case was adjourned on several dates. Thereafter on 4-1-1990 the Presiding officer passed an order as below :- "3-1-1990 was declared holiday. Put up on 9-1-1990 for hearing". There is a note on the order sheet by the counsel for the appellant in this appeal that due to shortage of time the appellant could not be informed, therefore, a prayer was made for fixing another date. On 9-1-1990 it appears that the counsel for the parties were heard in the Original Suit No. 859 of 1989 and the case was directed to be taken up on 12-1-1990. on 12-1-1990 the learned Civil Judge, Ghaziabad decided the Misc. Case No 186 of 1989 as well as the application filed by the arbitrator and numbered as O.s. No. 859 of 1989. The learned Civil Judge has made the award dated 1-9-1989 rule of the Court and directed the decree to be prepared in terms of the award. Aggrieved by the judgment of the Civil Judge dated 12 1-1990 the appellant has approached this Court through the above noted First Appeal From Order.

(2.) A preliminary objection has been raised on behalf of the contesting respondents that the above noted First Appeal From order is not maintainable.

(3.) ACCORDING to the learned counsel for the contesting respondents when no objection against the award was filed by the appellant within time provided by law, therefore, no question of refusing to set aside the award arises in the present case. ACCORDING to the learned counsel for the respondents if the appellant had filed objection within limitation and despite his objection the award had been made rule of the Court it cou'd be contended that the prayer for setting aside the award his been refused. ACCORDING to the learned counsel for the respondents when no objection has been filed, the contention of the learned counsel for the appellant that the impugned order should be treated as refusing to set aside the award cannot be sustained. In this connection our attention has been drawn to the ruling Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashetti, AIR 1962 SC 666, of the aforesaid ruling reads as below :- "The second question is whether the order of the Civil Judge amounted to an order refusing to set aside the award and, therefore, appelable to the High Court. The High Court he'd that it was not such an order and we agree. When no party filed an objection praying for the setting aside of the award, no question of refusing to set it aside can arise and therefore no appeal was maintainable under Section 39 (1) (vi) of the Arbitration Act which allows an appeal against an order refusing to set aside an award."