MAUJ BIHARI Vs. UMRAO BIHARI

JUDGEMENT

(1.) THIS first appeal arises out of an arbitration matter. Facts material for the decision of this appeal are that in pursuance of an agreement dated July 17, 1957, four arbitrators and an umpire, namely, Shri Jagmo Lal Shrivastava were appointed. They made an award on April 23, 1954, and got it registered. It was filed in the Court of the District Judge, Gwalior, under section 14 of the Arbitration Act on July 6, 1954. Notice of the filing of the award was served on the appellant Shri Mauj Bihari on July 22, 1954. He filed objection on September 2, 1954. As regards Prakash Bihari appellant No. 2 notice of the filing of the award was served on him on November 22, 1954, by affixing a notice on his residence and on January 4, 1955, by advertisement. He appeared on January 10, 1955, in the Court of the District Judge and eventually he filed his objections on February 14, 1955.

(2.) THE objections which were filed by Shri Mauj Bihari on September 22, 1964 and by Prakash Bihari on February 14, 1955 were under section 30 of the Arbitration Act. The Additional District Judge, by his order dated July 4, 1955, held that both these objections were barred by time. In doing so, he applied Article 158 of the Limitation Act and took July 22, 1954 and January 10, 1955 respectively as starting points of limitation.

(3.) IT is obvious enough that the decree which was passed by the Additional District Judge on February 28, 1956 in terms of the award was under section 17 of the Arbitration Act and it is provided in the section that no appeal lies from such a decree except on the ground that it is in excess of, or not otherwise in accordance with, the award. No such objection was taken in the memorandum of appeal. As such this appeal was incompetent. Shri Swami Saran learned counsel for the appellant immediately realized this mistake at the hearing and he sought our leave to be heard as if this appeal was against the order passed on February 27, 1956, rejecting the applications of the appellants under section 33 of the Arbitration Act. Having looked into the grounds of appeal and having regard to the fact that a certified copy of the order dated the 27th February had also been filed by the appellants together with appeal petition, we were satisfied that it was only an inadvertent mistake in drawing the appeal petition and we did not think it proper to dismiss it on that technical ground. We, therefore, heard this appeal treating it as one from the order passed on February 27, 1956.