ALBERT PUECH Vs. NAJM-UL-DIN AHMAD

JUDGEMENT

(1.) THIS is an appeal by a defendant against a decree passed upon an award, and is based on the contention that the Courts below had no jurisdiction to consider the award and give judgment in accordance with it until the period for applying to set aside the award prescribed by Art. 158 of Schedule II to the Limitation Act, coupled with Section 12 of the same Act, had expired. The suit was for an account of partnership dealings, and was referred to arbitration on the 20 of June 1905. On the 14 of November 1905, an award was made and the 25 of November was fixed for the disposal of the case, of which fact both parties were informed on the 14 of November. The defendant appellant applied for a copy of the award on the 23 of November, but had not obtained the copy when the case came on for disposal on the 25th. He applied for an adjournment of the hearing, but his application was refused, and, despite the provisions of Section 522 of the Code of Civil Procedure, which enables the Court to pass a decree upon the award only if no application has been made to set it aside and the time for making such application has expired, the Court of first instance passed a decree in the terms of the award. It is settled by the decision of a Full Bench of this Court in the case of Ibrahim Ali V/s. Mohsin Ali (1896) I.L.R., 18 All., 422 that an appeal will lie in a case where an application to set aside an award on the ground of misconduct of the arbitrator was made and the Court passed its decree without considering the application, or where the Court has not allowed sufficient time to the parties to file objections to the award. THIS ruling followed an earlier ruling of the Privy Council in the case of Maharajah Joymungul Singh Bahadur V/s. Mohun Ram, Marwaree (1875) 23 W.R., 429 and other cases of a similar nature. In that case the Calcutta High Court had set aside a decree passed upon an award on two grounds, the first being that the Judge had proceeded irregularly inasmuch as he had passed his decree without allowing the parties the ten days for filing objections to the award, which the Civil P. C. allowed them to do. The other was that the award was altogether informal. Their Lordships of the Privy Council expressed their approval of the decision of the High Court in petting aside the decree on these grounds. It is unnecessary to refer to other decisions of a like nature. When a decree has been regularly passed upon an award under the provisions of Section 522, no appeal lies from the decree except in so far as the decree is in excess of, or not in accordance with, the award. But before such a decree can be passed it is necessary for the Court to stay its hand until the time for making an application to set aside the award has expired. The Court is not to pass a decree upon an award until the time within which an application to set it aside has expired. Now the time allowed by Art. 158 for an application to set aside an award is ten days from the time when the award is submitted to the Court, but by Section 12 of the Limitation Act; in computing the period of limitation for such application, the time requisite for obtaining a copy of the award is to be excluded. It is clear, therefore, in the present case that the time, within which the defendant appellant could have applied to have the award set aside, had not expired when the decree was passed. The decree was, therefore, premature, and consequently, notwithstanding the provision in Section 522 that no appeal shall lie when a decree is in accordance with, and not in excess of, an award, the decree not being a legal decree, it is open to the party aggrieved by the action of the Court to maintain an appeal. We therefore , set aside the decrees of both the lower Courts and remand the suit to the Court of first instance, through the lower appellate Court, with directions that it be reinstated on the file of pending suits and be disposed of on the merits, an opportunity being given to the defendant appellant, if so advised, to apply to have the award set aside. We think that under all the circumstances the costs here and hitherto should abide the event. We order accordingly.