V.D. Misra, J.
(1) This is an appeal under Section 39 of the Arbitration Act against the order of Shri Avtar Singh Sohal, Sub Judge, dismissing the objections filed by the appellant and making the award a rule of court.
(2) The relevant facts, in brief, are that an agreement between the parties, dated 8th September, 1961 was alleged to exist. This contained an arbitration clause. In terms of the said clause, the disputes arising between the parties were referred 13 the arbitration of the person named in the said arbitration clause, who gave an award on'17th August, 1963. An application under sections 14 and 17 of the Arbitration Act was made by the respondent requesting that the said Arbitrator be directed to file the award with all the proceedings in the court and the award be made a rule of the court according to law. After the award had been filed in court notice of the same was sent to the appellant. This notice was served on the appellant on 28th April, 1964. Another notice sent under registered cover was received back un-served with the postal remark 'refused' on 4-5-1964. On 31st March, 1965 the appellant made an application in answer to the respondents application wherein, inter-alia has challenged the validity of the said arbitration agreement on various grounds.
(3) The lower Court came to the conclusion that the application of the appellant was governed by Article 158 of the Indian Limitation Act, 1908, which has since been repealed by the Limitation Act of 1963 and the corresponding new Article 119 (b). He also found that the appellant's application having been filed beyond the period of limitation prescribed in the said Articles was barred by limitation so dismissed the same. Mr. I.B. Lall, learned counsel for the appellant, contends that his application was, in fact, one under section 33 of the Arbitration Act and not under section 30. He further contends that the said Article 158 prescribed the period of limitation only for applications made under Section 30 of the Arbitration Act. Reliance is placed on a Full Bench decision of this Court in Prem Sugar Chawla V. Messrs Security and finance (P) Ltd. 1967 D.L.T. 277 wherein it was held :-
'THEexistence and validity of the arbitration agreement, thereforee, may be challenged by an application under Section 33 even though 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 by an Article 158 of the Limitation Act............................ ......................... My conclusion, thereforee, is that non-existence and invalidity of an arbitration agreement are not grounds for setting aside the award under section 30 and Article 158 of the Limitation Act does not apply where the relief sought is to have the ward declared null and void on the ground that there existed no arbitration agreement.'
At this stage Mr. Dhir, learned counsel for the respondent raises the objection that the appeal is not competent. Reliance is placed on Nilkantha Shidramappa Ningashetti V. Keshinath Shomanna Ningasheiti and others : [1962]2SCR551 wherein it was held that where there was no objection before the court praying for setting aside the award, no question of refusing to set it aside could arise, and no appeal thereforee was maintainable under S. 39(1)(vi) of the Arbitration Act. Mr. Lall, learned counsel for the appellant, requests that this appeal may be treated as Revision since the trial court refused to exercise the jurisdictionvested in it by holding that this application was barred by limitation under Article 158 of the Indian Limitation Act.
(4) In the interest of justice I allow the appellant's request and treat this appeal as Revision.
(5) Mr. Dhir learned counsel for the respondent contends that no 'case of Revision under Section 115 of the Code of Civil Procedure is made out. Reliance is placed on Chaube Jagdish Prasad and another V. Ganga Prasad Chaturvedi A.I.R. 1959 S.C. 592 wherein it was held :-
'SECTION 115, Civil' P.C. empowers the High Court in case where no appeal lies, to satisfy itself on three matters : (a) that the order made by the subordinate Court is within its jurisdiction ; (b) that the case is one in which the Court ought to exercise its jurisdiction (c) that in exercising the jurisdiction the Court has not acted illegally that is, in breach of some provision of law or with material irregularity that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision....................................... thereforee if an erroneous decision of a Subordinate Court resulted in its exercising jurisdiction not 'vested in it by law or failing to exercise the jurisdiction so vested or acting with material irregularity or illegality in the exercise of powers of revision by the High Court is made out.'
In my opinion the criteria laid down by the Supreme Court in the above-mentioned case is fully satisfied. In this case, the Subordinate Court has refused to exercise the jurisdiction vested in it by holding that the application filed by appellant was barred by limitation, whereas in fact, in view of Prem Sagar Chawla's case it is clear that the application was not barred by limitation.
(6) The result is that the Revision is accepted and the impugned order is set aside, and the case is sent back to the subordinate Court for deciding the objections raised by the appellant under Section 33 of the Arbitration Act.