PARTAP MAL AND OTHERS Vs. SEJMAL AND OTHERS

JUDGEMENT

(1.) THIS is a petition in revision by the defendants in the suit to revise an order of the District Judge, Shajapur remitting an award for findings by the arbitrators on certain issues left undetermined by them. The suit out of which this revision petition arises was filed by the plaintiffs on 14 -7 -1947 in the Court of the District Judge Shajapur for the cancellation of the sale -deed and for the consequential reliefs of the possession of a house dealt with by the sale -deed and the delivery of the sale deed to the plaintiffs On 17 -10 -49 the parties to the suit applied to the Court for an order of reference under S. 454, Gwalior Civil P.C. Samvat 1966 referring to arbitration certain matters in difference between them in the suit. The order of reference was made on 17 -10 -1949 and the arbitrators were asked to make the award before 29 -2 -1950. The arbitrators were unable to complete the award before 29 2 -1950. On 2 -3 -1950, the defendants asked the Court to revoke the order of reference as the arbitrators had failed to give their award before the period specified in the order of reference. The Court, however, enlarged the period for making the award which was ultimately given on 16 -3 -1950. While the arbitration proceedings were pending and before the making of the award the Gwalior Civil P.C. was repealed by Act No. 70 of 1949. By this Act, the Indian Civil P.C. as it was in force in the Indian Union on 22 -1 -1950 was adapted mutatis mutandis with effect from 22 -1 -1950. After the award was filed, the defendants lodged objections for setting aside the award. These objections were disallowed by the Court; it, however, considered that the award had left undetermined some matters referred to arbitrators and therefore, remitted the award to the re -consideration of the arbitrators under para 14 of the repealed Sub. II, Indian Civil P.C.

(2.) IN this revision petition, the main objection of the applicants is that after the repeal of the Gwalior Civil P.C. and the application of the Indian Civil P.C. in Madhya Bharat, the arbitrators had no jurisdiction to continue with the are tration proceedings and make an award, and the Court also, had no jurisdiction to pass any decree on the award. Learned counsel for the applicants argued that the provisions relating to arbitration which were formerly contained in Sch. II, Indian Civil P.C. were repealed in 1940 by S 49, Indian Arbitration Act, 1940; that on 22 -1 -50, the Indian Civil P.C. did not contain any provisions relating to arbitration and that, therefore, when the Indian Civil P.C. was adapted in Madhya Bharat by Act No. 70 of 1949 repealing the Gwalior Civil P.C., there remained no provision of law under which an order of reference could be male to arbitrators or the arbitrators could proceed with pending arbitration or the Court could pass a decree on the award. It was said that as from 22 -1 -1950 the arbitrators in the suit ceased to have any jurisdiction to continue with the arbitration and the Court also lost its jurisdiction to pass a decree on the award, the Court should have withdrawn the proceedings from the arbitrators and proceeded to decide the suit in accordance with the ordinary procedure in the Code.

(3.) IN my opinion, the contention raised by the learned counsel for the applicants is well founded and must be accepted. The statutory law of arbitration in the area of Madhya Bharat comprising the former Gwalior State was embodied in Chap. 35, Gwalior Civil P.C. Samvat 1966. The provisions of this Chapter were analogous to those contained in sch. 2, Civil P.C. 1908. The Gwalior Civil P.C. was repealed by S. 4 of Act NO. 70 of 1949 which came into force on 22 1 -50. Sections of this Act made applicable in Madhya Bharat the Code of Civil Procedure 1908 as it was in force in India on 22 1 50 There was no provision in Act NO 70 of 1949 saving any of the provisions of the Gwalior Civil P.C. I have no doubt in my mind that on 22 -1 -50 the Civil P.C. 1908 as it was in force in India, did not contain any law or procedure relating to arbitration. The Sch. 11 to the Code, as it originally stood, embodied the law of arbitration But it was repealed in 1940 by S. 49, Indian Arbitration Act. Section 48, Arbitration Act, nO doubt, provides that the Act shall not apply to any reference pending at the commencement of the Act, to which the law in force immediately before the commencement of the Act shall notwithstanding any repeal effected by the Act, continue to apply. But I am unable to accept the contention of the learned counsel for the non -applicants that the effect of Ss. 48 and 49, Arbitration Act is to keep Sch II to the Civil P.C. 1908 in force and to restrict its applicability to pending references it must be remembered that the Arbitration Act of 1940 was enacted to consolidate and amend the law relating to arbitration. This is clear from the preamble of the Act and S. 47 of the Act which says that subject to the provisions of S. 46 and of any other Act for the time being in force, arbitration proceedings will be governed by the Arbitration Act. Section 49 of the Act repealed Sch. II to the Civil P.C. 1908 without any qualification. When, therefore, S. 48 exempts from the operation of the Act all references made before the Arbitration Act came into force and further says that the law which was in force immediately before the commencement of the Act shall, notwithstanding, their repeal continue to apply to any pending references, the effect is to incorporate by implication in the Arbitration Act itself the provisions of Sch. II to Civil P.C. 1908 and to apply it to pending references. If after the coming into force of the Arbitration Act 1940, any pending reference was disposed of in accordance with the provisions contained in Sch. II it was not because Sch. II was not repealed but kept in force but because the provisions of the repealed Schedule were made applicable to pending references by virtue of S. 48, Arbitration Act which is an Act consolidating and amending the law relating to arbitration. There is, therefore, no substance in the contention put forward on behalf of the non -applicants that by Act No 70 of 1949 the Indian Civil P.C. was adapted in the Madhya Bharat together with Sch. II as it stood before the enactment of the Arbitration Act, 1940. In my judgment, after 22 -1 -50 with the adaptation of the Indian Code of Civil Procedure 1908 and until very recently when the Indian Arbitration Act was extended to Madhya Bharat on 1 -451, there was no Law of Arbitration in the area of Madhya Bharat comprising the former Gwalior State.