KASIRAJU LAKSHMIKANTHA RAO Vs. DENDUKURI VENKATESWARLU

JUDGEMENT

(1.) TWO Interlocutory Applications, numbered as 406 of 1960 filed in O.S. 1 of 1958 and 405 of 1960 filed inO.P. 69 of 1957 were disposed ofbyacommon order by the Court of the Subordinate Judge, Guntur. Against that order are the present Revision Petitions.

(2.) AS between the parties to the present petitions, there are disputes on account of money dealings. The matter was referred to arbitration and an award was passed by the arbitrators on 13th October, 1957. While matters stood thus, the respondent herein filed O.P. 69 of 1957 to reopen the arbitration on the ground that the arbitrators were biased and therefore the award cannot stand. On the other hand, the petitioner herein filed O.S. 1 of 1958 for bringing the award into Court and for passing a decree in accordance with its terms. Both these matters - the original petition and the original suit-appear to have been posted for hearing to 7th January, 1960 and both the parties seem to have been present in Court till about 3 P.M. on that day. Thereafter, the respondent herein went away and when at 3 P.M. the case was called, the Advocate reported no instructions. Therefore, on the ground that the respondent herein was not ready, the original petition was dismissed after setting him ex parte and a decree was passed in O.S. 1 of 1958 in accordance with the terms of the award. Subsequently, I. A. 406 of 1960 was filed to set aside the ex parte order and I.A. 405 of 1960 was filed to restore the Original Petition filed by the respondent herein. The lower Court granted the prayers of the respondent herein in both the petitions. Hence these revision petitions have been filed by the petitioner herein. It may be mentioned that, the respondent herein also filed two other Interlocutory Applications numbered as 1261 and 1260 of 1960 for reviewing the order passing a decree in O.S. 1 of 1958 and also to excuse the delay of six days in filing LA. 1261 of 1960 respectively. These petitions also were consequently dismissed by the lower Court. AS against the orders in these applications, C.R.P. Nos. 428 and 429 of 1961 have been filed in this Court. All these four Revision Petitions have therefore been heard together.

(3.) IT thus becomes plain that in matters where an award is sought to be set aside on any of the grounds specified in section 17 and that any of the parties has been set ex parte in those proceedings, the application of the Code of Civil Procedure is not prohibited to those proceedings. Furthermore, it is necessary to bear in mind that, section 17 says that no appeal shall lie from a decree when it is passed in terms of the award in certain specified circumstances. But it is not possible to construe this embargo as also taking away the right of any party to go before a Court and satisfy that an order setting him ex parte should be revoked for sufficient cause when especially the proceedings he seeks to restore consist not the passing of a decree in terms of the award but the prior steps which relate to the remitting of the award or setting asiae the award. Thus analysed, in my view, section 17 itself renders it necessary to have to hold that in prior proceedings which precede the passing of the decree in terms of the award, no question of non-applicability of the provisions of rule 13 of Order 9, Civil Procedure Code, would arise. IT may be said, to such purport is also the reasoning employed by Ramesam, J., who spoke for the Division Bench which decided Selvarayan Samson v. Amalorpavanadam, (1927) 55 M.L.J. 262 : A.I.R. 1928 Mad. 969. There, the Division Bench was concerned with the question whether an appeal lies against an order refusing to set aside an ex parte decree passed in an application filed under section 20 of Schedule II of Civil Procedure Code and registered as a suit. The learned Judge, while distinguishing the case in Roshan Lal v. Firm Bridhi Chan, A.I.R. 1924 Pat. 603. where the reference was through Court followed by an award, brought out that when an application is filed under section 20 of Schedule II, Civil Procedure Code, the order made by the Court to file the award could be taken as a case open to appeal and an order setting aside a party thereto ex parte can be questioned in an appeal and as such Order 9, rule 13 is not inapplicable to such a case. IT has been rightly pointed out by the learned Judge that, an order for filing the award should be taken to be one apart from the order of passing the decree on the award. IT is further observed in that decision that when an order of the former kind has been set aside on the ground that a party has shown sufficient cause to restore the petition, the decree too as a consequence to the order passed on that petition should fall along with it. Thus, when the ex parte order is set aside, it is stated that all other proceedings from the stage of non-appearance should also be taken to have been set aside. This decision, in my view, can be considered as an authority for the distinction it brings out in respect of the proceedings prior to the passing of the decree in terms of the award and that which ends in the decree in terms of the award, and for making out how in a case prior proceedings when a petition is dismissed it may be restored when sufficient cause is shown for the absence of a party. The learned counsel for the petitioner wanted to distinguish this case as one in which section 17 of the Arbitration Act had not been considered but only section 20, which corresponded to a provision in Schedule II of the Civil Procedure Code before the Schedule was repealed. But, in my view, it makes little or no difference inasmuch as section 17 of the Arbitration Act lays down for consideration of prior proceedings for remitting or setting aside an award when resorted to before passing of a decree in terms of the award, and section 20 to proceedings by which an award is caused to be brought before the Court. I, therefore, consider that this objection to the maintainability of the revision petitions against the Order in I.A. No. 405 of 1960 is not tenable.