GOPAL DAS Vs. S KESAR SINGH

JUDGEMENT

(1.) THIS revision application is directed against an order of the District Judge, Jammu, holding that the decree passed by the Munsiff. Jammu, on the basis of an award was not appealable in as much as the Munsiff had not refused to set aside the award so as to give the appellant a right to file an appeal under section 39 of the Arbitration Act. The defendants appeal was dismissed on the preliminary ground that it was not maintainable. The defendant has come up in revision to this Court against that order.

(2.) IT appears that the plaintiff had brought a suit for dissolution of partnership and rendition of accounts against the defendant in the court of Munsiff, Jammu. In the course of proceedings the parties agreed that Chaudhary Inder Das be appointed as arbitrator. The Court by its order dated 3 -3 -1965 appointed Chaudhary Inder Das as an arbitrator and directed the parties to appear before him. The arbitrator was asked to remit the award on 8 -4 -1965. The arbitrator after considering the evidence adduced by the parties and after hearing them filed the award in Court and the Court without giving notice to the parties of the filing of the award passed a decree in terms of the award in favour of the plaintiff against the defendant petitioner for Rs. 5400. Against that decree appeal was filed by the defendant in the Court of District Judge. A preliminary objection was taken by the plaintiff respondent that the trial Court had not refused to set aside the award and therefore no appeal lay under section 39 of the Arbitration Act against a decree passed by the trial court on the basis of an award. This plea found favour with the District Judge and he dismissed the appeal on the ground that it was not maintainable.

(3.) IN this revision application it is argued on behalf of the petitioner that under section 14 of the Arbitration Act it was necessary for the trial Court to give notice to the parties when the award was filed in Court in order to enable the aggrieved party to file objections to the award. The trial Court did not give any notice to the parties of the filing of the award and passed a decree in favour of the plaintiff against the defendant on its basis. It is contended that the omission on the part of the trial Court in giving notice of the filling of the award and inviting objections thereto can by necessary implication be construed as its having refused to set aside the award made by the arbitrator and therefore the order passed by the trial Court was appealable under section 39 of the Arbitration Act and the learned District Judge had erred in dismissing the appeal as not maintainable. The main question for consideration in this revision application is whether the order passed by the trial court was appealable or not. It is true that after the award was filed no notice was issued of the filing of the award as required by section 14 of the Arbitration Act. The defendant did not file any objections to the award and the trial Judge proceeded to pronounce the judgment and decreed the claim of the plaintiff to the extent of Rs. 5400 on the basis of the award made by the arbitrator. The learned counsel for the respondent has argued that as there was no application filed by the defendant raising objections to the award the act of the trial court in passing a decree in terms of the award cannot be construed as refusing to set aside the award. According to the learned counsel there should have been an application which could be refused or accepted by the trial Judge but in the absence of any application the question of refusal did not arise. This contention is without any substance and cannot be accepted. The provisions of section 14 of the Arbitration Act are mandatory and the trial Judge was required to give notice to the parties of the filing of the award. It is not disputed that no notice was given by the court to the parties and no objections were invited to the award filed in court. Under these circumstances it can be presumed that the trial Judge did not consider it necessary to invite objections to the award and even if objections had been filed, he would not have cared to consider those objections. The act of the trial Judge in omitting to give notice as required under law amounts to refusing to set aside the award made by the arbitrator and under section 39 (6) of the Arbitration Act appeal lay against an order to set aside or refusing to set aside an award. Although there is direct authority on this point yet there are cases in which objections to the award were not considered by the trial Court and order was passed on the basis of the award and it was held that the objections to the award not having been considered by the court amounted to refusal to set aside the award .In S.S. Engineering CO.v. Union of India, AIR 1953 Punjab129,it has been held; -