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1998 DIGILAW 645 (PAT)

Panna Devis v. Karamdeo Singh

1998-09-08

B.N.AGRAWAL, P.K.SARIN

body1998
JUDGMENT B.N. Agrawal & P.K. Sarin, JJ. This appeal has been filed by defendants no. 2 and 3 challenging decree passed in Title Suit No. 346 of 1973 in terms of the Award given by the Arbitrators on 25.2.1973. 2. The short facts are that on 8.11.1972 the parties entered into an agreement to refer their disputes for arbitration. Pursuant to the aforesaid agreement the matter was referred to the Arbitrator who, upon receipt of the reference, entered into the arbitration proceeding and upon its conclusion gave their Award on 25.2.1973. On 17.4.1973 an application under section 14(2) of the Arbitration Act (hereinafter referred to as the Act) was filed by the respondents along with a copy of Award for making the same rule of the Court. On 8.6.1973 notices of filing the Award were served upon defendants no. 2 and 3 and pursuant thereto they entered appearance on 17.8.1973. Thereafter, on 18.12.1973 defendants no. 2 and 3 filed objection under section 30 of the Act. By order dated 1.3.1974 the trial court rejected the objection on the ground that the same was barred by limitation and directed the Award to be made rule of the Court. 3. Against the aforesaid order the appellants moved this court by filing an appeal which was registered as M.A. no. 75 of 1974. The appeal was heard by a Division Bench of this court and disposed of by judgment dated 11th April, 1978. A question was raised before this court that the trial court was not justified in making the Award a rule of the Court as the same related to immovable property as well for which the Award was required to be registered but the same was not registered. This court allowed the appeal, set aside the aforesaid order passed by the trial court and directed the trial court to send back the Award to the Arbitrators for getting the same registered. It was further directed that upon filing of the registered Award by the Arbitrators the trial court shall issue notices to the defendants in relation to filing of the registered Award and, thereafter, decided the case on merit. 4. After remand, the Arbitrators got the Award registered and filed the same in the court below on 18.11.1978. It was further directed that upon filing of the registered Award by the Arbitrators the trial court shall issue notices to the defendants in relation to filing of the registered Award and, thereafter, decided the case on merit. 4. After remand, the Arbitrators got the Award registered and filed the same in the court below on 18.11.1978. Thereafter, on 16.12.1978 the court below, in accordance with the aforesaid direction of this court, ordered for issuing notices to the defendants in relation to filing of the registered Award to enable them to file objection, if any, meaning thereby objection under section 30 of the Act. The said notices were served upon the defendants, including the appellants, who were defendants no. 2 and 3 on 31.12.1978. Pursuant to service of notice these defendants entered appearance on 6.1.1979 and, thereafter on 24.1.1970 they filed objection under section 30 of the Act. The trial court by its order dated 9.7.1979 rejected the objection as barred by limitation as in its opinion notices of the Award shall be deemed to have been served upon the defendants on 8.6.1973. 5. Against the said order the appellants moved this court by filing a Civil Revision bearing C.R. no. 1718 of 1979 and when the revision application was heard on 12.9.1979 the same was allowed to be withdrawn with observation that it will be open to the present appellants to challenge the correctness of the aforesaid order in appeal, if any, taken against the decree which may be passed in terms of the Award. Thereafter, by order dated 21st November, 1979 the Award was directed to be made rule of the court and the trial court decreed the suit in terms of the Award. Against the aforesaid decree the present appeal has been preferred by defendants no. 2 and 3. 6. Learned counsel appearing on behalf of the appellants submitted that the trial court was not justified in rejecting the objection under section 30 of the Act by its order dated 9.7.1979 on the ground• that the same was barred by limitation as after filing of the registered Award fresh notices were served upon the appellants on 31.12.1978 and within a period of thirty days from that date the objection was filed on 24.1.1919. It has been further submitted that the trial court was not justified in rejecting the Award on the ground of limitation treating the earlier notice for filing the unregistered Award served upon the appellants on 8.6.1973 as the relevant date for considering the period of limitation for filing objection. 7. Learned counsel appearing on behalf of the respondents has contested this appeal on two grounds. Firstly, it has been submitted that after filing of registered Award it was not necessary in law to serve fresh notices upon the defendants as notices of filing of unregistered Award served upon them on 8.6.1973 should be treated to be the relevant date for the purpose of computing the period of limitation for filing objection under section 30 of the Act. We find difficulty in accepting the submission of the learned counsel as in the case in hand while disposing of appeal filed before this court on 11.4.1978, this Court had clearly observed that if Arbitrator filed registered Award notices shall be issued to the parties. Thus, in view of the clear direction of this court it was incumbent upon the trial court to issue fresh notices to the defendants in relation to filing of a registered Award to enable them to file objection under section 30 of the Act and the trial court has very rightly, by its order dated 16.12.1978 directed for issuing notices to the defendants for filing of the registered Award to enable them to file objection meaning thereby objection under section 30 of the Act. This being the position, we are clearly of the view that the objection under section 30 of the Act filed by the appellants on 24.1.1979 upon receipt of notices of the filing of the registered Award served upon them on 31.2.1978 was well within time and the trial court has committed an error in rejecting the objection on the ground that the same was barred by limitation. 8. 8. Another objection of learned counsel appearing on behalf of the respondents that in the present appeal which has been filed against the decree, the correctness of the order dated 9.7.1979 whereby objection filed by the appellants was rejected on the ground that the same was barred by limitation cannot be challenged in view of the provisions of section 17 of the Act which lays down that in an appeal filed against the decree in terms of the Award the only question which can be examined is whether the decree is in excess of the Award or not or otherwise in accordance with the Award. We find substance in the submission of learned counsel that in an appeal filed against decree passed in terms of the Award correctness of the order rejecting objection under section 30 of the Act cannot be agitated. 9. In the present case, we find that when the appellants challenged the aforesaid order passed on 9.7.1979 by filing a revision application, this court instead of allowing the appellants to convert the revision application into appeal under section 39 of the Act, permitted them to withdraw the revision application giving them opportunity to challenge its correctness in appeal filed against the decree passed in terms of the Award. The present appeal, challenging the decree has been filed within the period of limitation prescribed for filing appeal against decree. It is well settled that for mistake of court a party cannot be allowed to suffer. In the facts and circumstances of the case, we are treating this appeal as an appeal against order dated 9.7.1979 passed by the trial court, which has been assailed in the appeal. Though no formal application has been filed for condonation of delay, but an oral prayer has been made for condonation of delay in treating this appeal against order dated 9.7.1979. In the facts and circumstances of the case we condone the delay in filing this appeal. 10. For the foregoing reasons, the appeal is allowed and order dated 9.7.1979 passed by the trial court is set aside and consequently the subsequent order passed on 21.11.1979 and the decree passed in the suit are also set aside. 11. In the facts and circumstances of the case we condone the delay in filing this appeal. 10. For the foregoing reasons, the appeal is allowed and order dated 9.7.1979 passed by the trial court is set aside and consequently the subsequent order passed on 21.11.1979 and the decree passed in the suit are also set aside. 11. Now the matter is remanded to the trial court for considering and disposing of objection under section 30 of the Act filed on behalf of the appellants on 24.1.1979 upon merit in accordance with law after giving opportunity for hearing and adducing evidence to the parties. In the circumstances of the case, we direct that the parties shall bear their own cost.