RAJESHWAR PRASAD SINGH Vs. AMBIKA PRASAD SINGH

JUDGEMENT

(1.) THIS is an appeal against an order dated 2-3-1950, of Mr. B. P. Pandey, Second Additional Subordinate Judge at Darbhanga, refusing an application made by the appellant under Order 9, Rule 13 and Section 151, Civil P. C. for setting aside a decree passed on an award.

(2.) IN order to appreciate the points, which have been placed before us, it is necessary to state a few facts. The appellant, who was a minor, was defendant 17, and his father, defendant 16, in a partition suit filed by the respondents against them and several others. Sri Jugal Kishore Choudhury, a pleader, was appointed guardian ad litem for the appellant in the court below. On 16-9-1941, Ramjatan Singh, the father of the appellant, made an application to the Court below, asking for the discharge of the Pleader guardian ad litem and for his own appointment in his place, and also for permission to join the reference to arbitration. On that date another petition was also filed by the parties jointly for reference to the arbitration of the persons named therein. The petition for reference to arbitration was for some defects rejected, but the application for discharge of the guardian al litem remained pending as no order was passed on this petition. Thereafter, on 18-9-1941, all the parties filed a fresh petition praying to refer the case to arbitration of the persons named therein. The court on the same day referred the suit to arbitration. The arbitrators filed their award on 17-12-1941, and the award was confirmed on 2-1-1942. A notice of the filing of the award was given to all the parties concerned. IN pursuance of the notice, Ramjatan Singh, the father of the appellant, on 5-1-1942, filed a petition under Section 30 Arbitration Act, 1940, making certain objections against the award, on 20-6-1942, the award was, however, set aside, because it had been confirmed within thirty days. Thereafter, on 27-7-1942, Ramjatan Singh filed fresh objections to the award which were, however, rejected, but on appeal this Court directed that the petition 01 Ramjatan Singh filed on 5-1-1943, should be treated as an application under Section 30, Arbitration Act. These objections, however, later on were rejected on 4-7-1946. Thereafter, the father of the appellant having failed in his attempt to get the award set aside, sat tight over the matter and then on 14-4-1949, the present application was made by the present appellant, through his mother as guardian, objecting to the award. This application purported to be under Order 9, Rule 13, as well as under Section 151, Civil P. C. It was conceded in the Court below that Order 9, Rule 13, did not apply and, therefore, the application was pressed under Section 151, Civil P. C. This application was, however, rejected by the Court below on 2-3-1950, and the present appeal has been preferred against this order,

(3.) THE first contention of Mr. Sanyal in reply to the preliminary objection, is that his application should be considered to be one under Section 30, Arbitration Act, and, therefore, an appeal would lie under Section 39 of the Act. Section 30, Arbitration Act requires an objection to be filed under Article 158, Limitation Act, within thirty days from the date of service of the notice of the filing of the award. Admittedly no such objection was made by the appellant. His father did file an objection under Section 30, but it was rejected. THEre is no specific averment in his petition filed on 14-4-1949, that the notice of the filing of the award was not served' on him or his guardian as required by Section 14, Clause (2). Notice of the filing of the award, as stated before, was given to all the parties concerned and their lawyers did put their signatures on the order sheet in token of having received the notice. THE father of the appellant filed an objection, but no such objection was filed on behalf of the appellant. It is impossible, therefore, to accept the contention of Mr. Sanyal that his application should be considered to be an application under Section 30, Arbitration Act, so as to give him a right of appeal under Section 39 of the Act.