BABULAL Vs. RAMSWARUP

JUDGEMENT

(1.) THIS is a defendant's appeal under Order 43 Rule l(u) of the Code of Civil Procedure against the appellate order of the Additional District Judge of the former State of Ajmer dated 30-7-1956 reversing the decision of the original court on the point of limitation in a money suit.

(2.) THE relevant facts for the proper appreciation of controversy between the parties may be stated in a little detailed manner as follows:

(3.) THIS controversy relates to Section 21 and although I feel inclined to follow the Patna view, I do not express any final opinion, as in my judgment considerations relevant under Section 21 of the Act cannot be extended and invoked to limit the meaning of the word 'court' in Section 37(5). Section 21 contemplates a question regarding the competence of the appellate court to discharge functions conferred upon the court of the first instance. No such question arises in connection with Section 37(5). It cannot be denied that in view of a clear provision of appeal under Section 39 against an order setting aside award or refusing to set aside an, award, the appellate court's competence to reverse an order of the court of first instance and to set aside an award maintained by the court of first instance or to uphold an award set aside by the original court, cannot be doubted. The question under Section 37 simply is whether while the appellate court has jurisdiction to exercise functions, a suitor resorting to appeal can claim exclusion of time taken in appeal when admittedly he is entitled to the exclusion of time taken in the court of first instance. There is fundamental difference in the two cases and an analogy of Section 21 will be quite misleading and the observations made for the interpretation of the word 'court' in that context are of no help in interpreting Section 37(5). A critical examination of the Calcutta case will show that the reasoning of that case cannot be applied to a case under Section 37(5). The main consideration that prevailed with the Judges in that case was that the provisions of Section 107 C. P. C. empowering the appellate court to exercise the powers of the original court could not be extended to the making of the references, It was pointed out that the only provision in the Arbitration Act for extending the Civil Procedure Code generally to arbitration matters are contained in Section 41 of the Arbitration Act and therein it was provided that the provisions of the Civil Procedure Code shall apply to all proceedings before the court and to all appeals under this Act. An appeal in the kind of cases before the Calcutta High Court does not lie under the Arbitration Act but under the general law and, therefore, section 107 C. P. C. could not be invoked by the appellate court for making a reference. Under Section 39 of the Arbitration Act, an order setting or refusing to set aside an award has been made appealable and appeals against orders setting or refusing to set aside awards certainly will lie under the Arbitration Act and, therefore, Section 107, C. P. C., must be attracted in cases of this type, and the reasoning of the Calcutta case cannot be extended to this case. We must bear in mind that the appellate court and the revisional court in exercising appellate or revisional jurisdiction is quite competent to set aside the awards, even though the original court may not have thought it proper to set aside and, therefore, if we interpret the word 'court' in S, 37 to mean only the original court, there will be a serious anomaly where an award is set aside by an appellate court. In that case on the argument of the learned counsel for the appellant, there can be no case for exclusion of the period in terms of Section 37 of the Arbitration Act. The legislature cannot be imputed to have intended such an absurd result. It appears, therefore, quite reasonable and fair in the context of Section 37 to interpret the word 'court' in Section 37(5) so as to include the appellate and the revisional court, at any rate, when the award is set aside by an appellate or revisional court. THIS position could not be successfully met by the learned counsel for the appellant. He, however, urges that when an award is set aside by the original court, in that case a litigant should not be entitled to exclude the period taken in a further appeal or revision against the order setting aside the award. The obvious short answer to this argument is that we cannot interpret the word 'court' differently because of the variations in circumstances of individual cases. When for one purpose, discussed above, the word 'court' must include the appellate Of revisional court, there is obviously no adequate reason for interpreting it differently when the award is set aside, by the original court.