SHAMBHU NATH Vs. HARI SHANKAR LAL

JUDGEMENT

(1.) THIS is a defendant's appeal against an order passed by the lower court directing that a decree be passed in terms of an award. The parties are brothers. On 17-8-1943, they entered into an agreement along with their mother Rajwanti and the dispute was referred to two arbitrators, girdha-rilal and Madho Prasad. Within 10 or 12 days of the reference the two arbitrators started the work, gave notice to the parties and started recording the evidence. On 25-7-1949 Rajwanti died. On 31-8-1950 one of the brothers, Hari Shanker Lal, gave a notice to the arbitrators that they should proceed with the reference and give an award by an early date. On 1-10-1950, the award was given. Thereafter Hari Shanker Lal applied that the award be filed and made a rule of the court. The application was registered as a suit and notice was issued to Shambhu Nath and kedar Nath, Shambhu Nath filed the following objections:

(2.) LEARNED counsel has agreed that there is no substance in the third objection. It is not necessary for us to go into the fourth. The second objection of limitation must be decided in favour of the appellant. Section 3 of the Arbitration Act (Act No. 10 of 1940) provides that:

(3.) LEARNED counsel for the appellant, has, however, relied on a decision of a Bench of this court to which one of us was a party, viz. , -- 'jawala Prasad v. Amar Nath', AIR 1951 All 474 (B) and has urged that it has been held that the provisions of paragraph 2 of First Schedule are mandatory as the arbitrators are bound to appoint an umpire; in the absence of such appointment the award is invalid. The provisions of paragraph 2 of the First Schedule impose an obligation, and it cannot be denied that the arbitrators should have appointed an umpire. But the question remains, what is the effect of such failure. The question whether the parties had waived the irregularity and were estopped from questioning the award on that, ground was not considered in that case as the point was not raised. The learned Judges took care to confine their decision to the facts of that particular case and have said that in the circumstances of "this particular case" the award made is not valid.