ORDER
1. These two revision petitions are filed by the 2nd and 1st respondents against the judgment and decretal order of the learned Subordinate Judge in OP No.83 of 1987. As both the revisions are against the same order, they are disposed of by this common order.
2. The 1st respondent in both the revisions filed the O.P., under Section 17 ofthe Arbitration Act (hereinafter referred to as 'the Act') praying the Court to confirm the Award, dated 15-9-1985 passed by the arbitrators; to direct the respondents 1 to 3 to deliver possession of the lime garden and house bearing No. 17/458 and the down portion of D.No.l7/358/B1, and further to direct the 1 st respondent to cause production of the original award and the consent letter and to pay a sum of Rs. 30,000/- and further to direct the 2nd respondent to pay Rs. 62,000/- to the petitioner as per the award, apart from declaring the 173rd right in Item No.10 of the vacant site bearing D.No. 18/39 situate, in B.Syedsab Street, Cuddapah and to effect the partition of the said vacant site into three equal shares and to deliver one such share to the petitioner. The said OP was filed alleging that the petitioner and the respondents 2 and 3 are the sons of the 1st respondent and the members of the joint family and the 1st respondent was the Manager of the joint family. It was stated that the 1st respondent was originally a resident of Satthupalli of Rajampet taluk. One Tenkayala Venkatamma, a native of Cuddapah town, who was distantly related to the 1st respondent, was having only daughter by name Subbamtna and she has no sons. She brought the 1 respondent, with an intention to give her only daughter in marriage to him and consequently with an intention to look after her household affairs. Subsequently, the 1st respondent married her daughter Subbamma. Venkatamma died on 22-8-1967 leaving behind the Items 1 and 2 of the petition schedule property, apart from other movables and all the properties devolved on the petitioner and the respondents 1 to 3. The petitioner and the respondents 1 to 3 have acquired the other items of properties and there was no partition till date and therefore all the members of the joint family gave their consent on 15-5-1985 agreeing to bind themselves on the award to be passed by the elders, named in the Muchelika, said to have been executed on that day. It was alsostated that the said arbitrators, after considering alt the joint family properties, have passed an award on 15-9-1985 allotting specific schedule of properties to the petitioner and the respondents 1 to 3. A Photostat copy of the Award was served on all the parties by the Arbitrators and a copy of the same was filed and marked as Ex.A1 on behalf of the petitioner. Even though the said award was acted upon and delivered certain of the properties to the petitioner, but certain of the item were not delivered. Hence filed the present O.P to pass a judgment in terms of the Award and also for the reliefs as referred easlier.
3. This was contested by the respondents. The petitioner in CRP No.747 of 1998, who was the 2nd respondent in the O.P., filed his counter stating that he did not execute any Muchelika agreeing to refer the matter to the arbitration and the alleged award is only a forged document and therefore no decree could be passed in terms of the said arbitration award. It was also stated that the petitioner in the O.P filed O.S.No.69 of 1985 on the file of the Sub-Court for partition of his 174th share in the joint family properties. He also filed another suit O.S.No.574 of 1985 in the same Court against the 1st respondent's father for dissolution of the partnership firm Koneru Venkataiah and Sons and also for rendition of accounts. The 1st respondent as well as the 3rd respondent have filed written statements in those suits, but they did not state any where as to the alleged reference to the arbitration under the alleged Muchelika, executed by all the members. The story of reference to the arbitrators is fraudulent and concocted one. Under the scheme of the Arbitration Act, there must be a reference to the Arbitrators signed by the parties. The arbitrators must enter upon the arbitration and make enquiry and then pass appropriate award and gave notice thereof to the parties.
As none of the these events had taken place, the claim made by the petitioner in the OP is liable to be rejected. Even with reference to the limitation also the 2nd respondent in the OP contended that it is barred by limitation under Article 119 of the Limitation Act. Hence, sought for dismissal of the O.P.
4. Insofar as the 1st respondent is concerned, in his counter, he has stated that the relief sought for in the present OP is outside the scope of the Arbitration Act. Hence, the petition may be dismissed in limini. He has also stated that the scheduled properties are his self-acquired properties and the petitioner has no right or title to the same. It was also contended that as per the Muchelika signed by him, one G. Krishna Murthy, advocate must also act as on arbitrator upon whom he reposed great confidence. But due to his professional pressure he did not participate in the arbitration, as an arbitrator. Therefore, the award even if it is given by the other arbitrators, it could not be acted upon.
5. The lower Court framed the following only two issues -
(1) Whether the Award dated 15-9-1985 is valid and binding on the parties?
(2) Whether the petition filed by the petitioner is barred by limitation under Article 119 of the Limitation Act?
6. On behalf of the petitioner, the petitioner himself was examined as PW1 and another was examined as PW2 and got marked Ex.A1; while on behalf of the respondents, the 1st and 2nd respondents were examined as RWs.1 and 2 and Exs.Bl and B2 were marked on their behalf.
7. The lower Court after considering the rival contentions and the material on record, without giving any finding as tothe execution of the agreement entered by the parties and the existence of the same, answered the first issue in favour of the petitioner, observing that none of the parties have taken any steps to set aside the award, which means the award was acted upon and the award passed by the Arbitrators is valid and binding on the parties. With reference to the second issue the lower Court held that the application was filed only under Section 17 of the Act to pass a judgment and the decree and no application was filed under Section 14 of the Arbitration Act. As no proceeding was taken under Section 14 for cancellation of the Arbitration award, the proceeding under Section 17 is not barred by limitation. The lower Court also found that the parties to the Award did not issue any notice to the arbitrators to file the award. The arbitrators, admittedly, died after filing of this petition. None of the parties to the award have taken steps to get the award cancelled if they are aggrieved by it. The trial Court therefore accepted the contention of the petitioner that the limitation, as provided under Article 137 of the Limitation Act is applicable and as the award was filed within the period of three years, the petition filed was within time and is not barred by limitation and, therefore, answered the second issue also in favour of the petitioner.
Aggrieved by the same, the respondents 1 and 2 filed the present revisions.
8. The learned Counsel for the Petitioner in CRP No.747 of 1998 contended that the trial Court was not justified in passing a decree in terms of the relief sought for in the original petition. According to the learned Counsel, the original petition was filed basing on an arbitration agreement, the Muchelika, said to have been executed by all the parties. When the fact of execution of such Mechelika between the parties was disputed, the lower Court oughtto have framed appropriate issues and ought to have given a finding as to the execution and existence of such agreement. In the absence of said finding, the entire proceedings are without jurisdiction and therefore the original petition is liable to be dismissed on that ground alone. The learned Counsel also contended that admittedly no proceedings were initiated under Section 14 of the Act. Under the provisions of the Act, once the arbitrators passes their award and communicated to the parties, the parties have to take steps either to get the said arbitration award filed into the Court or to seek a direction from the Court to the arbitrator to get the award filed into the Court and thereafter to make it a Rule of the Court. Admittedly, no steps have been taken under Section 14 of the Act to get the arbitration award filed into the Court. In the absence of such an act of filing the award into the Court, the Court has no power to make the award rule of the Court. It is not open to one of the parties to file a copy of the award served on him and seek the relief of making it a rule of the Court. The learned Counsel also contended that admittedly, according to the petitioner in the OP., the award was passed by the Arbitrators on 15-9-1985 and a copy of the same was served on him within a week or ten days. If once the said award copy is served on the parties, the parties have to take steps in terms of Section 14 of the Act within a period of thirty days from the date of such service of notice to get the award filed into the Court. Admittedly, no such step had been taken by any of the parties and in the absence of such filing ofthe award by the arbitrators into the Court, the present O.P filed after nearly two years to make the award a rule of the Court is clearly barred by limitation, apart from the defect that no such award be made rule of the Court.
In support of his contention the learned Counsel relied upon the following decisions :-Shri Ram v. Shripat Singh, : AIR1957All106 ; P. Ramulu v. N. Appalaswami, AIR 1957 A.P. 11, and Binod Bihari Singh v. Union of India, : AIR1993SC1245 .
9. The learned Counsel also contended that the Award passed by the arbitrators is an unreasonable award. In the light of the amended provisions of Act 1 of 1990 by which Sections 14 and 17 are amended by insertion of the provisos, an unreasoned award passed by the arbitrators is illegal and unenforceable and in such case even in respect of the awards, which are pending before the Court to make the award rule of the Court, such awards have to be remitted to the arbitrators for passing a reasoned award. The learned Counsel relied upon a judgment of a Division Bench of this Court in the case of Hemadri Cements Private Limited v. Walchandnagar Industries Limited, : 1995(3)ALT120 (DB), in support of his contention.
Finally the learned Counsel contended that as per the award, the arbitrators have distributed the immovable properties of the joint family i.e., a partition of immovable properties was affected in the award passed by the arbitrators. As the immovable property is of the value of more than one hundred rupees, the said award is to be registered under Section 17(1)(b) of the Registration Act. As the award in question was not registered, it is not admissible in evidence to make the same a rule of the Court. In support of his contention the learned Counsel relied upon a Full Bench decision of this Court in Venkataratnam v. Chelamayya, : AIR1967AP257 . Therefore, it is contended that the order and decree passed by the trial Court in the O.P is liable to be set aside and the revision petition is to be allowed.
10. The learned Counsel for the respondent has contended that the petitioner and the respondents I to 3 in the OP referredthe matter to the arbitrators for settlement of the dispute as to the distribution of the properties among the members of the joint family. The arbitrators, who had gone into the disputed issues, have considered and thereafter passed .an award on 15-9-1985. The copy of the said award was communicated to all the parties and in fact that said award was acted upon by the parties and even according to the petitioner in the OP certain of the items specified in the arbitration award were delivered to him, but only a part of the items were left out and, therefore, he was constrained to file the present O.P. It is therefore contended by the learned Counsel for the 1st respondent/ petitioner in the OP., that as the award was acted upon by the parties, there is no justification at this stage to contend that there was no agreement as well as the award between the parties. The learned Counsel relying upon the decisions of the Allahabad High Court in the case of Union of India v. S.B. Singh, : AIR1982All318 , and the Calcutta High Court in the case of Panchanan Dey v. Union of India, : AIR1959Cal84 , contended that there is no question of any limitation, as there was no clear finding as to the date of service of the award on the parties apart from the fact that it was also acted upon. With reference to the unreasoned award passed by the arbitrators it is contended that the dispute was only as to the distribution of the joint family properties among the members of the joint family and as such no reasons are required to pass an award as far as the distribution of the properties among the members of the joint family is concerned. Therefore, there is no merit in the contention of the petitioner in the CRP that the award passed by the arbitrators is not a reasoned award. Therefore, it is contended that there are no merits in the present revision petitions filed by the respondents 1 and 2 to set aside the order and decretal order passed by the lower Court.
11. From the above rival contentions, the issue to be considered is whether the Court below was justified in passing a decree in favour of the petitioner in the OP in terms of the Award.
12. The parties are referred as arrayed in the OP.
13. The relationship among the parties is not disputed that the 1st respondent in the original petition is the father and the petitioner and the respondents 2 and 3 are the sons. They constitute joint family is also not in dispute, though the 1st respondent disputed as to the existence of joint family properties, In any case, we need not detain ourselves as to the above issue. According to the petitioner, there was an arbitration agreement between the parties to refer the dispute among the petitioner and the respondents 1 to 3 under a Muchelika dated 15-5-1985 executed by all the parties and as per the said agreement it was referred to five named arbitrators, who passed the award on 15-9-1985. It is also stated that the said award was acted upon to some extent. As it was not fully acted upon, the petitioner sought for the relief specified in the petition. But the execution of such an arbitration agreement as well as passing of an award by the arbitrators was seriously disputed by the 2nd respondent. The trial Court did not frame any issue. It is not in dispute that the existence of an arbitration agreement is a mandatory for the arbitrators to act upon and to pass an award in terms of the agreement. The learned Counsel for the petitioner in support of his contention relied upon ajudgment of the Delhi High Court in the case of Prem Sagar v. Security and Finance Limited, AIR 1968 Delhi 21. In this case the Delhi High Court considered as to the necessity of existence of a written agreement for referring to the arbitration. In an application filed under Section 33 of the Act challenging the validity of an award on the ground of non-existence of an arbitrationagreement, it was held that an award on the supposition of an arbitration agreement, which does not exist, would be void, ab inito and, therefore, not worthy of notice in the eye of law for the purpose of being set aside. The same appears to be the position where the challenge to the award is on the ground that the arbitration agreement is void by reason of non-compliance with any of the conditions precedent to its validity. The existence and validity of the arbitration agreement, therefore, may be challenged by an application under Section 33 even though an award on the basis of the supposed arbitration agreement has been made, and even though an application under Section 33 is made after the expiry of the time prescribed under the Limitation Act.
This issue was also considered by the Calcutta High Court in the case of Hiralal Pannalall v. Dalhousie Jute Company, : AIR1978Cal119 . It was held by the Calcutta High Court that an agreement for arbitration is the very foundation on which the jurisdiction of the arbitrators to act rests and where that is not in existence at the time when they entered on their duties, the proceedings must be held to be wholly without jurisdiction. This defect is not cured by the appearance of the parties in the proceedings even if that is without protest because consent cannot confer jurisdiction. There is, however, nothing in such a case to prevent parties from entering into a fresh agreement to refer the dispute to arbitration while it is pending adjudication before the Arbitrator and in that event the proceedings thereafter before them might be upheld as referable to that agreement and the award will not be open to attack as without jurisdiction. But it will make all the difference in the result whether the parties have entered into an arbitration agreement as defined under Section 2(a) or have merely taken steps in the conduct of proceedings assumed or believed to bevalid. In the former case the award will be valid, in the later, a nullity. In the instant case, there was no evidence that the parties entered into any fresh agreement apart and separate from the agreement, which was void, to refer the disputes to arbitration. Therefore, it was held that the award in question was without jurisdiction.
Similar issue was considered by the Bombay High Court in the case of M/s. Gangaram Ratanlal v. M/s. Simplex Mills Company Limited, AIR 1982 Bom. 72. In this case, it was held by the Bombay High Court that an arbitration agreement must be one as defined in Section 2(a) of the Arbitration Act and hence must be in writing. If that sine qua non is absent, the result would be that the initial lack of jurisdiction on the part of the Arbitrator cannot be cured by oral acquiescence on the part of the party and any admission of liability by such party before the Arbitrator can avail the other side nothing as it is made before an authority, who, for want of an arbitration agreement as defined in Section 2(a) initially has no jurisdiction to act as Arbitrator and is therefore incompetent to make an award. Lack of jurisdiction goes to the root of the matter; it is not merely an irregularity, which can be cured by oral acquiescence.
In the light of the above decisions and the contention of the 2nd respondent that there is no written agreement, the burden is on the petitioner to prove as to the existence of such an agreement. No steps have been taken by the petitioner as to the filing of such an agreement, the Muchelika into the Court. In the absence of such evidence, it is ' not possible for the Court to accept the contention of the petitioner that there was an agreement. Even though the 1st respondent has admitted as to the existence of such an agreement, but when it is disputed by the other party, the burden is on the petitioner to prove as to the execution andexistence of the said Muchelika referring the matter to the arbitrators.
14. The next issue that was urged by the learned Counsel for the 2nd respondent is that the award was not filed by the Arbitrator into the Court, as contemplated under the provisions of Section 14 of the Arbitration Act, 1940. Section 14 reads as under:
'Section 14: When the Arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award.
Provided that the Arbitrator or umpire shall give reasons for any award made under this Section and no award shall be valid unless reasons therefore are given as aforesaid.'
15. A perusal of the above provision shows that when the arbitrators or umpires have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing the award. On such notice, the parties to the award either request the Arbitrator to file the award into the Court or seek appropriate direction from the Court to get the award filed into the Court by the Arbitrator. On filing the award into the Court by the Arbitrator, the Court has to issue notice to the parties and after receiving such notice from the Court, the parties willing to file objections to set aside the award may take appropriate steps within the time frame and if none of the parties makes any application for setting aside the award or on rejection of such applications to set aside the award, the Court, if does not see any ground either to remit the award for re-consideration or to set aside the award, proceed to pronounce the judgment according to the award and a decree shall follow. In the present casenone of the parties have made an application under Section 14 to get the award filed into the Court by the Arbitrators. But filed an application directly under Section 17 to pass a decree in terms of the Award.
16. The learned Counsel relied upon the following judgments in support of his contention that unless that award is filed into the Court in terms of Section 14 of the Act, the award cannot be made the rule of the Court:-
17. In the case of Shri Ram v. Shripat Singh (supra) the Allahabad High Court considered the issue as to the maintainability of a suit to have a decree passed in terms ofthe Award. The Allahabad High Court held :
'Where a party desires to have a decree passed in terms of the award he has to make an application under Section 14. The prayer in this application should be merely that the arbitrators be asked to file the award in Court. This application must be made within 90 days of the date on which he received notice of the making of the award. No such application can be made after the expiry of this period. No suit lies for having a decree passed in terms of the award. Similarly no suit lies for declaring that the award is not binding or is otherwise invalid. The relief may be obtained by means of an application made within 30 days of the receipt of notice for the filing of the award in Court under Section 14, or if no such notice is issued, by means of an application under Section 33 of the Act.'
18. In that case two suits were filed -one on 3-1-1949 by Shri Ram alleging that the arbitrators were unduly delaying the giving of the award and for appointment of other arbitrators; and another suit was filed on 12-2-1949 by Shripat Singh and others for passing of a decree in terms of theAward, which according to him had already given by the arbitrators on 15-11-1948. The trial Court having found that an award was already been passed dismissed the suit filed by Shri Ram and decreed the suit filed by Shripat Singh, the respondent in the appeal before the High Court in terms of the Award. On appeal by the unsuccessful party, the appeal was allowed holding that no decree could be passed in terms of the Award but the remedy is only in terms of Section 14 of the Act.
19. The learned Counsel also relied upon a judgment of this Court in the case of P. Ramulu v. N. Appalaswami (supra). In this case the issue as to the applicability of limitation with reference to the provisions of Sections 14 and 17 was considered by this Court. Though in this case an application was filed under Section 17 of the Arbitration Act, it was held that such an application would not attract Article 178 of the Limitation Act (Old Limitation Act). It was held that with reference to Section 14, the provisions of the said Limitation Act are applicable and as per the said Article once notice is served under Section 14 by the arbitrators as to the factum of Award being passed on the parties, then the limitation starts from the date of the service of the notice. Even in the light of the said judgment, in the present case, admittedly notice was served in the month of September, 1985 itself but the petitioner filed the original petition in July, 1987. Though he did not file an application under Section 14, but still the petitioner in the OP is entitled for the relief sought for unless the award is filed into the Court in terms of Section 14. In the light of the above judgment also, the petitioner is not entitled to the relief sought for.
20. The Apex Court had an occasion to consider a similar issue in the case of Binod Bihari Singh v. Union of India, (supra). In that case the appellant, who was a contractor, entered into an agreement for loading and unloading and handling of goods with the Eastern Railway Administration. As there was a dispute, the same was referred to an Arbitrator. The Arbitrator after hearing the parties passed the award in favour of the appellant for a sum of Rs.82,100/- by his award dated 26-2-1965. The Arbitrator sent the carbon copies of the award signed by him to both the parties. So far as the appellant is concerned, the Arbitrator has forwarded the signed copy of the Award along with the letter dated 20th February, 1965 stating that the signed copy there of being sent for information of the appellant. The appellant thereafter made an application on May 20, 1966 for making the award rule of the Court and for directing the Arbitrator to file the award in Court before the learned Subordinate Judge, Patna. The case of the appellant was that the said application was made by him under Section 17 of the Arbitration Act and not under Section 14 of the said Act. In the objections to the said application for making the award a rule of the Court, the plea of bar of limitation was not taken by the respondent but such a plea was taken at the stage of arguments. The learned Subordinate Judge upheld the award as valid while rejecting the plea of bar of limitation and accordingly the award was made a rule of the Court. That was assailed before the Patna High Court on the issue of bar of limitation. While the appeal was pending two specific issues were framed by the High Court and referred for the decision of the Subordinate Judge, with reference to the date of issue of notice of making the award from the Arbitrator and as to the bar of limitation. Though the Subordinate Judge answered the issues in favour of the appellant, the High Court disagreed with the findings of the learned Subordinate Judge. The High Court relied upon a judgment of the Apex Court in the case of Kumbha Mawji v. Dominion of India : [1953]4SCR878 wherein it washeld that mere handing over a signed copy of the award to a party does not mean that there was an implied authority from the Arbitrator to file the award in Court on his behalf. Such authority from the Arbitrator is required to be satisfactorily alleged and proved. The High Court has come to the finding that there was no implied authority from the Arbitrator given to the applicant to file the same to make it a rule of the Court and the forwarding letter to the Arbitrator had indicated that the same was sent only for information of the concerned party. Accordingly, the application made by the applicant must be held to be made under Section 14 of the Arbitration Act and Article 119 (a) of the Limitation Act was attracted in the facts of the case. The contention of the applicant that the application presented by the applicant should be treated as an application under Section 17 of the Act was not accepted by the High Court and the contention that the case was governed by the residuary Article 137 and not by Article 119(a) of the Limitation Act was also not accepted by the High Court. The said findings were contested before the Apex Court. The Apex Court held as under:
'In otir view, the High Court has rightly held that the application made by the appellant was an application for directing the Arbitrator to file the award in Court so that such award is made a rule of Court. In this case, there was no express authority given by the Arbitrator to the applicant to file the award to make it a rule of Court although a signed copy of the award was sent to the applicant. The forwarding letter clearly indicates that the award was sent for information. Accordingly, the decision of this Court made in Kumbha Mauji's case : [1953]4SCR878 (supra) is applicable. The High Court has given very cogent reasons which, we have indicated in some details, for not accepting the case of theappellant that he had received a signed copy of the award and the forwarding letter some time in May, 1965 and we do not find any reason to take a contraryview.'
21. From the above decisions it is clear that a party to the arbitration agreement has to make an application under Section 14 and not an application under Section 17 to make the award a rule of the Court. Unless an application is made under Section 14 and get the Award filed into the Court then only the same can be made a rule of the Court. In the light of the above decisions, an award cannot be made a rule of the Court basing on a copy filed by one of the parties, who has no authority to file such an award into the Court.
22. The learned Counsel also contended that the suit filed basing on the Award is barred by limitation in terms of Article 119 of the Limitation Act. According to the learned Counsel, even as per the petitioner the Award dated 15-9-1985 was served on him within a week or ten days. But the present OP was filed on 13-7-1987, nearly two years after the Award. According to the learned Counsel in terms of Article 119 (a) of the Limitation Act, the party to the arbitration has to make an application within 30 days from the service of a copy of the Award by the Arbitrator. In this case even according to the petitioner the award was served on him in the same month i.e., September, 1985. But the original petition was filed only on 13-7-1987 long after the lapse of 30 days. Therefore, it is barred by limitation. I find merit in the said contention of the learned Counsel for the 2nd respondent.
23. Another contention advanced by the learned Counsel is that the Award is an unreasoned award, which is illegal and unenforceable in terms of the Amended provisions of the Act 1 of 1990 and anunreasoned Award cannot be made a rule of the Court in terms of provisos inserted under Section 14 as well as under Section 17 of the Act. In support of his contention, the learned Counsel relied upon a judgment of this Court in the case of Hemadri Cements Private limited v. Walchandnagar Industries Limited (supra), where this Court held that an unreasoned award is not valid in the light of the proviso inserted under Section 14 of the Act. Further as per the first proviso to Section 17, where an award is pending in the Court at the commencement of the Amendment Act or an award filed in the Court thereafter, which does not contain reasons as required by the proviso to subsection (1) of Section 14, the Court shall not pronounce the judgment according to the award but shall remit the award to the arbitrators or umpires for giving reasons. As per the terms of the third proviso, where it is not possible for the Court to remit the award to the Arbitrator or panel of the Arbitrators or umpires due to their incapacity, negligence, refusing to act or death, the Court shall set aside the same and direct the parties to initiate fresh arbitration in accordance with the terms of the agreement. In the light of the said amended provisions, the award even if it is valid is liable to be set aside, as the award in question does not contain any reasons.
24. The learned Counsel next contended that the award in question requires registration under Section 17(1)(b) of the Registration Act as it dealt with the immovable property worth more than one hundred rupees. According to the learned Counsel, unless the award is registered under the provisions of the Registration Act, it is not admissible as evidence to make the same rule of the Court. In support of his contention the learned Counsel relied upon a decision of this Court in Venkataratnam v. Chelamayya (supra). The said judgment rendered by a Full Bench of this Court supports the contention of thelearned Counsel. Therefore, even on the above ground also the award passed by the arbitrators is inadmissible in evidence to make the same a rule of the Court.
25. However, the learned Counsel for the petitioner in the O.P., contended that as no award was filed into the Court by the Arbitrators, the question of limitation does not arise. It was also his contention that the arbitration award was acted upon by the parties. Therefore, even on that ground also the objections raised by the respondents are unsustainable. Finally, the learned Counsel contended that as the dispute is only as to the division of the properties among the members of the joint family, no reasons are required to be incorporated. Hence even on that ground also the contentions advanced by the learned Counsel tor the respondents does not merit. The learned Counsel also relied upon a decision of the Allahabad High Court in the case of Union of India v. S.B.Singh ( supra). In that case a Division Bench of the Allahabad High Court held that no material was placed to show the date on which the Arbitrator may have served the notice of the award on the plaintiff. In the absence of the relevant date, it is not possible to accept the contention that the plaintiff's application was barred by time.
26. Similarly, the learned Counsel also relied upon a judgment of the Calcutta High Court in the case of Panchanan Dey v. Union of India (supra). In that case a Division Bench of the Calcutta High Court held that sub-section (2) of Section 14 presupposes that the Arbitrator or umpire is alive and available or, at the most, if he is dead or fiot available, he has before his death or departure from the place authorise a party or someone else to file the award in Court on his behalf. Where the Arbitrator dies before filing the award and without authorising anyone to file it on his behalf, the section can have no application. Wherethe section could apply it may be entirely proper to insist on the strict observance of all the terms, but there is nothing in the Act to indicate that the provisions of the section are exhaustive and that where subsection (2) cannot apply, the award cannot be filed at all. Where Section 14 cannot apply, the Court may in a proper case make an order for the filing of the award under Section 151 of CPC where already before the death or departure of the Arbitrator there is an application before the Court for directing the Arbitrator to file the award. It is true that the Code has been made applicable by Section 41 of the Act to proceedings before the Court subject to the provision of the Act, but in the case contemplated there is a proceedings before the Court and there can be no question of conflict in applying Section 151 of the Civil Procedure Code with Section 14, which does not apply at all. It is not correct to say that an award filed otherwise than under Section 14 can be of no use because the provisions of Sections 15 - 18 of the Act could be applied only where an award is filed under Section 14. None of those sections make the filing of the award under Section 14, a condition precedent to the recognition or entertainment of the award. The only basis on which they proceed is that there is an award before the Court. Therefore, if the Court can make an order for the filing of an award in a case under Section 151 CPC, they can also implement that order by directing notice to be given of the filing under the same section. The said judgment rendered by the Calcutta High Court on the premise that the Arbitrators or umpries were no more. But, in the present case, admittedly, arbitrators were alive, even when the original petition was filed, according to the petitioner, though they were dead thereafter. In fact, even an application under Section 151 CPC was also not filed by the petitioner to get the award filed, as contemplated by the Calcutta High Court.Further, in the light of the above view contentions were advanced by the learned Counsel for the respondents in the OP to bypass the provisions under the Arbitration Act as welt as the Limitation Act and to make a decree in terms of the Arbitration Award. In fact, Section 32 of the Arbitration Act prohibits the passing of a decree in terms of the Award. Under the provisions of the Arbitration Act, the award must be made a Rule of the Court in terms of Section 14 and Section 17 of the Act. As the petitioner did not take any action under Section 14 of the Act and further in view of the provision Limitation Act also, the petitioner is not entitled to any relief in the O.P.
27. Accordingly, the revision petitions are allowed, setting aside the order passed in the OP but in the circumstances there is no order as to costs.