SHRICHAND PRASAD Vs. MOHAN SINGH

JUDGEMENT

(1.) IN this case, by the order under revision, a decree passed tinder Section 17 of the Arbitration Act, 1940, (hereinafter referred to as 'the Act'), has been set aside fay the Court below on the application of the 'opposite party purporting to be one under Order 9, Rule 13 of the Code of Civil Procedure. The petitioner filed an application in the Court below on the 22nd November, 1960, under Section 14 of the Act, which was registered as Miscellaneous Case No, 48 of 1960. Subsequently, it was converted into a title suit numbered as Title Suit 81 of 1960. Summons in the suit, meaning thereby the notice of the application under Section 14, is said to have been served on the opposite party on the 27th December, 1960, as also on the Head Punch. The latter filed the Award in Court on the 10th March, 1961. Thereafter, according to the petitioner's case, as it appears from his civil revision application, notice of the filing of the Award was issued and was served on the opposite party on the 2nd April, 1961. IN spite of the said service of notice of the filing of the Award, he did not appear and file any objection or an application to set aside the Award. Decree followed on the basis of the award under Section 17 of the Act, on the 17th April 1961. Thereafter, on the 7th October, 1961, the opposite party filed an application under Order 9, Rule 13, of the Code of Civil Procedure for setting aside the ex-parte decree on the ground that summons was suppressed and was not served on him and that he learnt about the ex-parte decree on the 15th September, 1961. The learned Subordinate Judge has held that notice of the filing of the Award was not served on the opposite party either on the 2nd April 1961, as alleged, or ever. IN that view of the matter, he has set aside the ex parte decree.

(2.) THE argument put forward on behalf of the petitioner is that a decree passed in terms of Section 17 of the Act cannot be set aside under 0. 9, Rule 13, of the Code of Civil Procedure. Even if it can be so done, it could not be done in this case without giving a finding in regard to the service of summons, that is to say, the service of notice of the application under Section 14 of the Act, on the opposite party on the 27th December, 1960, and without accepting his case of knowledge of the ex parte decree, on the 15th September, 1961.