KALLEPALLI SUBBAYYA Vs. KURRA VENKATADRI

JUDGEMENT

(1.) The petitioner was the first plaintiff in a suit. The following is the history of the case. On 8 October, 1937, a reference was made through the Court to arbitration, the time for the award being fixed for the 15 November, 1937. There was much delay and time was finally extended to the 25 January, 1938. On that day an order was made adjourning the suit to the 11 February. On the 5th March, the Court passed an order cancelling the reference to arbitration. That is an appealable order under Section 104(a) of the Civil Procedure Code, but no appeal has been filed against it. On 12 March, 1938, the arbitrators submitted an award notwithstanding the order of the 5 March and on the 25 March, the lower Court in a brief order cancelled its order of the 5 March, that is, the order cancelling the reference. No civil revision petition was filed against that order and no further action taken by the petitioner except that on 3 June, 1938, objections were filed by the petitioner. On 30 July, 1938, the District Munsif passed an order, "Decree in terms of the award", ruling that the objections of the petitioner were out of time. This civil revision petition is now directed towards the order of the 30 July, and not against any other order.

(2.) The position, therefore, is that notwithstanding the order made under Rule 8 of Schedule II an award was made and that later the order under Rule 8 was cancelled. Whichever way the facts are regarded, there is no doubt that this was a case where the award was made after the issue of an order by the Court superseding the arbitration. Now Rule 15 states that no award shall be set aside except on the grounds specified in that rule and one of them is as follows: The award having been made after the issue of an order by the Court superseding the arbitration and proceeding with the suit... [Rule 15 (c)].

(3.) It is true that the award has been made after the issue of the order of the Court superseding the arbitration. But the Court did not proceed with the suit because it cancelled its order cancelling the reference. What the precise reason for the introduction of the words "and proceeding with the suit" is I confess I have difficulty in appreciating but in those circumstances the remedy of the person aggrieved is to apply to the Court to set aside the award. There is no provision in the Code for circumstances such as those before me, unless it can be said that they are comprised in the words "or otherwise being invalid" which occur at the end of Sub-rule (c) to Rule 15. The authorities have been of little assistance. I have been referred to a judgment of a Full Bench of the High Court of Allahabad, Ibrahim Ali V/s. Mohsin Ali (1896) I.L.R. 18 All. 422, which dealt with the Code before it was amended and the words "or being otherwise invalid" are not included in the original framing of the section. Section 521 states that no award shall be set aside except on one of the following grounds: (c) the award having been made after the issue of an order by the Court superseding the arbitration and restoring the suit.