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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • R.C.Mishra
  • H.G.Panda
  • C.V.Murthy
Judges
  • G.K Misra, J.
Acts
  • Section 33 of the Indian Arbitration Act X of 1940 (hereinafter referred to as the Act)
  • Article 158 of the Limitation Act; and(iii)
  • Article 158 of the Limitation Act.4.
  • Article 158 of the Limitation Act
  • ARBITRATION ACT 1940
  • SECTION 5 LIMITATION ACT
  • Arbitration Act X of 1940.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • R.C.Mishra
  • H.G.Panda
  • C.V.Murthy
Judges
  • G.K Misra, J.
Acts
  • Section 33 of the Indian Arbitration Act X of 1940 (hereinafter referred to as the Act)
  • Article 158 of the Limitation Act; and(iii)
  • Article 158 of the Limitation Act.4.
  • Article 158 of the Limitation Act
  • ARBITRATION ACT 1940
  • SECTION 5 LIMITATION ACT
  • Arbitration Act X of 1940.
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

On 7-6-1958 the petitioner, Ganesh Chandra Misra, and Opposite Party 1, Artatran Misra, executed an arbitration agreement appointing three arbitrators (Opposite Parties 2–4). The arbitrators entered on the reference on 10-7-1958. Both parties applied for time on several dates; witnesses were examined between 26-5-1959 and 28-5-1959. An award was passed on 26-6-1959 and signed by all arbitrators. The award was filed in the Court of the Munsif, Parlakhimedi on 25-7-1959 (registered as M.J.C. No. 19 of 1959). Notice of filing was served and Artatran appeared through counsel on 23-10-1960. He took adjournments and ultimately filed an application under Section 33 of the Arbitration Act, 1940 challenging the award.

The opinion records the date of filing the challenge in two places: paragraph 1 records it as 11-5-1961, while paragraph 16 (and later discussion of limitation) refers to an application filed on 11-6-1961. The opinion treats the application as having been filed after the expiry of the 30-day limitation period under Article 158 of the Limitation Act.

Legal Issues Presented

  1. Whether a party who participates in arbitration proceedings after the statutory four‑month period (Condition No. 3, First Schedule to the Arbitration Act, 1940) thereby waives any objection to the arbitrators' jurisdiction (i.e., whether estoppel/waiver applies).
  2. Whether the application under Section 33 of the Arbitration Act to set aside the award was barred by limitation under Article 158 of the Limitation Act (30 days from service of notice of filing of the award), and whether Section 5 of the Limitation Act could save the application.
  3. Whether the finding by the lower courts that the arbitrators misconducted themselves because some depositions were not signed by all arbitrators was supported by pleaded facts and evidence.
  4. Whether the High Court had jurisdiction under Section 115 of the Civil Procedure Code to interfere with the subordinate courts' orders when those courts allegedly failed to exercise jurisdiction vested in them under Section 17 of the Arbitration Act.

Arguments of the Parties

Opposite Party 1 (Artatran Misra) — objections raised in the trial court

  • The award was not maintainable because it was filed in Court by one of the arbitrators who was an interested party.
  • The arbitration proceedings were vitiated by misconduct of the arbitrators: witnesses were examined behind his back (some arbitrators did not take part at all stages).
  • The award was not passed within four months from the date when the arbitrators entered on the reference, so the arbitrators lacked jurisdiction to proceed.

Petitioner / Mr. Panda (for petitioner)

  • The objections raised by Artatran were baseless.
  • Artatran waived any objection to jurisdiction and is estopped from challenging the award because he participated throughout the arbitration, even after the expiry of four months.
  • In any event, the application under Section 33 is barred by limitation under Article 158 of the Limitation Act.
  • Finally, the appellate courts' factual finding of misconduct (that some arbitrators did not take part) was not supported by evidence and should not have been entertained.

Opposing counsel (Mr. Murty) — principal defences/arguments

  • Relied on authorities (Kampta Prasad Nigam v. Ram Dayal and Lakhmir Singh v. Union of India) to contend that the pre‑1940 view of estoppel/waiver is no longer good law under the Arbitration Act, 1940 — essentially arguing that the four‑month period is statutory and not subject to estoppel.
  • Relied on Ismail v. Hansraj to argue that the Court has inherent jurisdiction to examine the validity of an award even if an application under Section 33 is barred by limitation, where illegality is apparent on the face of the award.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Choudhuri Murtaza Hossain v. Mt. Bechunissa, 3 Ind App 209 (PC) Where a party has full knowledge of circumstances and submits to arbitration, he is estopped from objecting (cannot insist on objection after award is made). The Court quoted this authority to show the established pre‑1940 principle that participation and submission to arbitration can create estoppel/waiver of time objections.
Patto Kumari v. Upendra Nath Ghosh, AIR 1919 Pat 93 Parties who attend and recognise arbitrator's jurisdiction to continue (even after time for award expired) are estopped by their conduct from impugning the award as out of time. Used to support the proposition that under the old law parties' conduct could give rise to estoppel against a time objection; the Court treated this as unassailable under pre‑1940 law and relevant to present analysis.
Kampta Prasad Nigam v. Ram Dayal, AIR 1951 All 711 Held that the Second Schedule (pre‑1940 law) lacked an analogous statutory provision, and suggested estoppel against a statutory period may be untenable. Cited by Mr. Murty to argue estoppel does not apply under the 1940 Act; the Court expressly rejected this dictum and declined to accept it as the correct law.
Lakhmir Singh v. Union of India, AIR 1957 Pat 633 Followed AIR 1951 All 711; relied upon to contend pre‑1940 estoppel principles did not survive the 1940 Act. The Court noted it merely follows AIR 1951 All 711 and declined to treat it as authoritative for the proposition relied upon by Mr. Murty.
Sambhunath v. Sm. Surja Devi, AIR 1961 All 180 Dissented from AIR 1951 All 711 and supported the view that parties could, by conduct/consent, enlarge or waive the statutory four‑month period. The Court expressed inclination to accept the view in Sambhunath as correctly applying the Arbitration Act, 1940 in permitting waiver/estoppel.
Sheoramprasad v. Gopal Prasad, AIR 1959 Madh‑Pra 102 Dissenting view from AIR 1951 All 711; supports that the four‑month period may be altered by consent of parties. The Court referred to and accepted this line of authority in support of the conclusion that parties can, by conduct, be taken to have consented to enlargement/waiver of the four‑month term.
Chandanmull & Co. v. Mohambal, AIR 1953 Mad 561 Held that Section 5 of the Limitation Act is not applicable to an application under Section 33 of the Arbitration Act to set aside an award (i.e., Section 5 cannot save such an application). The Court relied on this authority to hold that limitation could not be saved by Section 5 where an application under Section 33 was filed beyond the Article 158 period.
Ismail v. Hansraj, AIR 1955 Raj 153 Recognised that a Court may, in limited circumstances, examine an award even if no objection is raised or an objection is barred by limitation where illegality is apparent on the face of the award. The Court treated this authority as limited: inherent jurisdiction exists only where illegality is apparent on the face of the award. It held the present case did not present that situation, so Ismail did not assist Artatran.
Dharmu Saboto v. Krushna S. Saboto, ILR (1956) Cut 222; (S) AIR 1956 Orissa 24 Statement of law that there would be misconduct if arbitrators did not act together at every stage of the arbitration. The Court accepted the principle but held that a claim of such misconduct must be pleaded and proved; mere absence of signatures on some depositions was insufficient to infer non‑participation.

Court's Reasoning and Analysis

The Court proceeded in the following analytical steps, relying on the facts and statutory framework recorded in the opinion:

  1. Factual starting point: the Court accepted (and the opposing counsel did not dispute) that Artatran participated actively in the arbitration proceedings after the expiry of the statutory four‑month period: he applied for time on multiple dates, examined and cross‑examined witnesses, and generally submitted to the arbitrators' jurisdiction.
  2. Historical law: the Court recounted that under the pre‑1940 law (Second Schedule of the Civil Procedure Code) the established principle was that a party who takes part in arbitration proceedings and submits to the arbitrators is estopped from later objecting to the award as being out of time. The Court cited Choudhuri Murtaza Hossain and Patto Kumari to demonstrate this settled pre‑1940 position.
  3. Statutory framework under the Arbitration Act, 1940: the Court examined Section 3 (importing applicable First Schedule conditions into arbitration agreements), Condition No. 3 of the First Schedule (the four‑month period for making an award), and Section 28(1)–(2) (power of the Court to enlarge time and invalidity of any provision empowering arbitrators to enlarge time except with consent of all parties). The Court observed that Condition No. 3 creates a statutory, implied term in the arbitration agreement but that Section 28(2) recognizes that the parties (by consent) may validly permit enlargement of time.
  4. Legal question distilled: whether parties by conduct can waive the four‑month period so that an award made after four months remains within jurisdiction. The Court reasoned that the statutory framework permits the parties to alter the implied term (the four‑month period) by mutual consent: the implied term is part of the agreement and can be altered like any contractual term. This is consistent with Section 28(2).
  5. Application of estoppel/waiver: having found that the parties were free to consent or submit to the arbitration beyond four months, the Court held that Artatran's active participation amounted to waiver and estoppel and that the arbitrators did not act without jurisdiction. The Court expressly preferred the authority in Sambhunath and Sheoramprasad (which dissented from AIR 1951 All 711) and rejected the contrary dictum in Kampta Prasad Nigam.
  6. Limitation analysis: Article 158 (Limitation Act) prescribes 30 days from service of notice of filing an award to apply to set aside or remit an award under the Arbitration Act. The Court found notice was served and that Artatran's application was filed long after the 30‑day period. The Court held the application was therefore time‑barred. Section 5 of the Limitation Act could not save the application, applying Chandanmull & Co. v. Mohambal.
  7. Inherent jurisdiction: Mr. Murty argued the Court had inherent jurisdiction to examine awards despite limitation (relying on Ismail v. Hansraj). The Court limited that authority: the Court may examine an award where an illegality is apparent on the face of it (per Section 16(c) and the cited authority), but no such facial illegality existed here. Therefore, the Court would not exercise inherent jurisdiction to examine the barred objection.
  8. Misconduct/failure to participate: The lower courts had found that arbitrators misconducted themselves because some depositions were not signed by all arbitrators. The High Court held that such a finding was not supported by pleaded facts or evidence. The mere absence of signatures on some depositions does not prove non‑participation; the issue is factual and must be pleaded and proved. The lower courts' conclusion was based on surmise rather than evidence and therefore had to be vacated.
  9. Jurisdiction to interfere under Section 115 CPC: because the lower courts misconceived the law (particularly on waiver/estoppel and limitation) and thereby failed to exercise jurisdiction vested in them under Section 17 of the Arbitration Act (to pronounce judgment according to the award where no cause to remit or set aside), the High Court found it could interfere under Section 115(a) CPC. The Court observed that the subordinate courts had exercised their jurisdiction illegally and with material irregularity.

Holding and Implications

Holding: THE CIVIL REVISION IS ALLOWED; the judgments of the Courts below are set aside.

Specific orders and immediate consequences (as recorded in the opinion):

  • The petitioner is entitled to a judgment according to the arbitration award, and a decree shall follow that judgment (i.e., the award is to be made a rule of the Court and enforced by decree).
  • The application filed by Artatran under Section 33 of the Arbitration Act was held to be barred by limitation under Article 158 of the Limitation Act (the Court so concluded on the facts of this case).
  • The Court vacated the lower courts' finding that arbitrators misconducted themselves for failure to participate at some stages, because that finding lacked pleading and proof.
  • The petitioner was awarded costs throughout and hearing fee of Rs. 100/-.

Broader implications (limited to what the opinion states):

  • The Court applied and reaffirmed the principle that, under the Arbitration Act, 1940, parties who knowingly submit to arbitration proceedings after the statutory four‑month period may be treated as having waived objections to the arbitrators' jurisdiction and can be estopped from later challenging an award as out of time. The Court expressly rejected contrary dicta in AIR 1951 All 711 and related decisions and aligned with decisions such as Sambhunath and Sheoramprasad.
  • The opinion emphasizes that claims of arbitrator misconduct (non‑participation) must be specifically pleaded and proved; mere absence of signatures on witness depositions is insufficient evidence of non‑participation.
  • The Court limited the exercise of inherent jurisdiction to examine awards where illegality is apparent on the face of the award and declined to exercise any broader inherent jurisdiction where the Section 33 application was time‑barred and no facial illegality existed.

The opinion therefore resolves the dispute between the parties by enforcing the arbitration award in favour of the petitioner and by clarifying (within this decision) the application of waiver/estoppel and limitation in the context of the Arbitration Act, 1940 as it applied on the facts before the Court.

This summary is confined to the information contained in the provided opinion and does not add, infer, or rely on external materials beyond those cited within that opinion.

Show full summary ...

    Ganesh Chandra Misra v. Artatrana Misra And Others Opposite Party.

    1. The facts leading to the Civil Revision may be stated in extenso. On 7-6-1958 Ganesh Chandra Misra (the petitioner) and Artatran Misra (opposite party 1) executed an arbitration agreement in favour of Narasingh Mohapatra (opposite party 2), Lingaraj Misra (Opposite Party 3) and Lokanath Misra (Opposite Party 4) appointing them as arbitrators to decide their dispute and agreed that their decision would be binding on them. The arbitrators entered on the reference on 10-7-58. Both the parties applied for time before the arbitrators on 10-7-1958, 13-9-58, 3-12-58 and 16-1-1959. On 14.4.1959 Artatran Misre alone filed an application for time and again on 3-5-1959 both the parties applied for time 8 witnesses were examined by the petitioners and 2 witnesses by Artatrana from 26-5-1959 to 28-5-1959. The award was passed on 26-6-1959 and was signed by all the arbitrators. On the award itself both the petitioner and Opposite Party 1 noted “seen” on the very day. The award was filed by Lokanath Misra (Opposite Party 4) in the Court of the Munsif, Parlakhimedi, on 25-7-1959, and the application was registered as M.J.C No. 19 of 1959. In due course notice was issued on Artatrana who appeared through his lawyer on 23-10-1960. He, however, took adjournments for filing objections on 16-1-1961, 25-1-1961 and 8-2-1961. Ultimately he filed an application on 11-5-1961 under Section 33 of the Indian Arbitration Act X of 1940 (hereinafter referred to as the Act) challenging the validity of the award.

    2. Subsequently the following objections were raised by Artatrana—

    (i) The award is not maintainable inasmuch as it was filed only by one of the arbitrators who is an interested party.

    (ii) The entire arbitration proceeding is vitiated by misconduct on the part of the arbitrators as the witnesses were examined behind his back.

    (iii) The award was not passed within four month from the date of the arbitrators entered on the reference. The petitioner filed a counter asserting that the objections were baseless and further taking the plea that the application, filed by Artatrana, was barred by limitation under Article 158 of the Limitation Act. He also pleaded waiver of jurisdiction of the arbitrators and, estoppel as Artatrana participated in the arbitration proceeding throughout even after the expiry of 4 months.

    3. The learned Munsif came to the following conclusion:—

    (i) The filing of the award in court by one of the arbitrators to pass a decree is not bad in law;

    (ii) The arbitrators misconducted themselves as all of them did not take part in the entire arbitration proceeding:

    (iii) The award was not passed within four months after the arbitrators entered on the reference, and the arbitrators had no jurisdiction to proceed with the arbitration proceeding after the expiry of the time limit fixed in Condition No. 3 in the First Schedule to the Act;

    (iv) The application filed by Artatrana was barred by time under Article 158 of the Limitation Act.

    4. The learned Munsif dismissed the miscellaneous case holding that as the award itself was not passed within the stipulated period, the same was not maintainable and the validity of the objections raised by Artatrana did not arise for consideration. He accordingly refused to make the award a rule of the Court.

    5. In the appeal, the learned Subordinate Judge did not express any opinion as to whether the application filed by Artatrana under Sec. 33 of the Act was barred by limitation. In view of his concurrence with the first three findings of the trial court, he dismissed the appeal. Against the appellate order this Civil Revision has been filed.

    6. Mr. Panda raised three conditions—

    (i) Even though the arbitrators made their award beyond 4 months of their entering on the reference, the award is valid as Artatrana waived objection to the jurisdiction of the arbitrators by taking part in the proceeding and his objection is barred by estoppel;

    (ii) If the case of waiver and estoppel is accepted, the application of Artatrana under Sec. 33 of the Act challenging the validity of the award is barred by time under Article 158 of the Limitation Act; and

    (iii) The concurrent finding of fact that the arbitrators misconducted as all of them did not take part in the-proceeding at many stages, is not based on evidence on record. Such an objection on a pure question of fact is not admissible and should not have been permitted to be raised.

    7. All these contentions require careful examination.

    8. From the facts narrated it is well established, and the position is also not disputed by Mr. Murty that Artatrana took part in the entire arbitration proceeding and submitted himself to the jurisdiction of the arbitrators after the expiry of 4 months from 10-7-58 when the arbitrators entered on the reference. From 10-7-1958 he himself applied for time on all dates and took part in examining: his own witnesses and cross-examining the witnesses for the petitioner from 26-5-59 to 28-5-1959. Prior to the passing of Act X of 1940, arbitration proceedings were governed by the Second Schedule of the Code of Civil Procedure. Under the old law, the position of law was well settled that if a party took part in the proceeding and submitted himself to the jurisdiction of the arbitrators in allowing the arbitration to proceed, he was estopped from challenging that the award was passed beyond time, and that the principle of waiver also applies to him. The matter was expressed in inimitable language by their Lordships of the Judicial Committee in Choudhuri Murtaza Hossain v. Mt. Bechunissa, 3 Ind App 209 (PC). At p. 220 their Lordships observed—

    “On the whole, therefore, their Lordships think that the appellant having a clear knowledge of the circumstances on which he might have founded an objection to the arbitrators proceeding to make their award, did submit to the arbitration going on; that he allowed the arbitrators to deal with the case as it stood before them, taking his chance of the decision being more or less favourable to himself, and that it is too late for him, after the award has been made, and on the application to file the award, to insist on this objection to the filing of the award.”

    9. In Patto Kumari…Plaintiff v. Upendra Nath Ghosh…Defendant Opposite Party., AIR 1919 Pat 93 their Lordships, after thorough discussion laid down the proposition that where parties attend and recognise that the arbitrator has jurisdiction to continue the arbitration, even though the time for making the award has expired, they are estopped by their conduct from seeking to impugn the award on the ground that it was invalid by reason of being filed out of time. It is unnecessary to multiply decisions. That this was the position under the old law is unassailable.

    10. Mr. Murty, however, contends on the authority of Kampta Prasad Nigam v. Ram Dayal, AIR 1951 All 711, and Lakhmir Singh v. Union of India, AIR 1957 Pat 633, that the aforesaid view is no longer good law under Arbitration Act X of 1940. AIR 1957 Pat 633 merely follows AIR 1951 All 711 and gives no independent reasons. In AIR 1951 All 711 their Lordships held that there was no provision in the Second schedule of the Code of Civil Procedure before 1940 analogous to Condition No. 3 in the First schedule of the Act under which the period of four months fixed is a statutory provision and no plea of estoppel against a statute is tenable in law. With respect. I am not inclined to accept this dictum as laying down the correct law.

    11. It is necessary to examine the relevant sections. In the Act. Section 3 enacts, that an arbitration agreement, unless a different intention is expressed therein, shall be deemed to include the provisions set out in the First Schedule in so far as they are applicable to the reference. Condition No. 3 in the First Schedule is to the effect that the arbitrators shall make their award within four months after entering on the reference or after having called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow. Section 28(1) vests power in the Court 10 enlarge time for making the award. The Court may, if it thinks fit, whether the time for making the award has expired or not and whether the award has been made or not, enlarge from time to time the time for making the award. The second and third clauses in Condition No. 3 have no relevance in the present case. The first clause that the arbitrators shall make their award within four months after entering on the reference has already been infringed.

    12. The question for determination is whether, by consent, the parties can waive this prescribed period of four months by taking part in the arbitration proceeding and submitting themselves to the jurisdiction of the arbitrators. There is no express provision in the Act that there can be such waiver or estoppel. The only provision which sheds some light on the problem is enacted in Sec. 28, sub-sec. (2) which lays down that any provision in an arbitration agreement whereby the arbitrators or umpires may, except with the consent of all the parties to the agreement, enlarge the time for making the award, shall be void and of no effect.

    13. Reading Sec. 3, Condition No. 3 in the First Schedule and Sec. 28 together, the position of law appears to be clear that the parties are free to enlarge the time for making the award with their mutual consent. With the consent of all the parties, a term can be incorporated in the arbitration agreement giving powers to the arbitrators to enlarge the time for making the award. By condition No. 3 in the First Schedule, statutorily an implied term is embodied in the agreement that the award shall be made within four months after entering on the reference. By this statutory provision, the term is to be taken as an integral part of the agreement and is subject to alteration with the consent of the parties like any other terms of a contract. If that were not the intention of the Legislature Sec. 28(2) would not authorise a provision in the arbitration agreement empowering the arbitrators to enlarge the time for making the award with the consent of the parties. If the parties, after the expiry of the four months, submit themselves to the jurisdiction of the arbitrators and take part in the proceeding enabling them to pass an award, it cannot be said that the arbitrators acted without jurisdiction. In such a contingency, the principle of waiver and estoppel would have full application. Despite absence of analogous provision in the Second Schedule of Code of Civil Procedure before 1940, the position of law has not been affected by the Act. This is not a case of estoppel against a statute. It is against an implied term of the agreement introduced by the statute, I am inclined to accept the view adopted in Sambhunath v. Sm. Surja Devi, AIR 1961 All 180 and Sheoramprasad v. Gopal Prasad, AIR 1959 Madh-Pra 102 which expressly dissented from AIR 1951 All 711.

    14. On the aforesaid analysis and on the admitted facts, there can be no escape from the conclusion that Artatrana waived his objection on the question of jurisdiction of the arbitrators after the expiry of four months and is estopped from challenging the validity of the award as being out of time. Mr. Panda's first contention must prevail.

    15. The second contention may now be examined. Article 158 of the Limitation Act runs thus—

    “Under the Arbitration Act, 1940 (10 of 1940) to set aside an award or to get an award remitted for reconsideration.” Thirty days The date of service of the notice of filing of the award.

    16. Indisputably notice of filing of the award was served or Artatrana before 23-12-1960 when he appeared through his lawyer. The application under Sec. 33 of the Act challenging the validity of the award was filed on 11-6-61 long after the expiry of 30 days from the date of service of the notice. The application is therefore clearly barred by time. Limitation cannot even be saved under Section 5 of the Limitation Act which is not applicable to an application filed to set aside an award under Sec. 33 of the Act — Chandanmull and Co. v. Mohambal, AIR 1953 Mad 561.

    17. In fact no application under Section 5 of the Limitation Act was filed. As Artatrana's application raising his objections was barred by limitation, it was not open to the Court to examine the objections. The award was filed within time, and unless a case is made out that the arbitrators misconducted themselves under Sec. 30(a), or that the award is improperly procured or is otherwise invalid under Sec. 30(c) of the Act, the award is to be made a rule of the Court, a judgment is to be passed in terms of the award under Sec. 17 of the Act and upon a judgment si pronounced a decree shall follow. Though the learned trial Court found that the application of Artatrana was barred by limitation, the learned lower appellate Court expressed ??? opinion in the matter. I am satisfied that the application under Sec. 33 of the Act is barred by time.

    18. On the authority of Ismail v. Hansraj, (S) AIR 1955 Raj 153, Mr. Murty contends that even if the application files by Artatrana under Sec. 33 is barred by limitation, the Court has inherent jurisdiction to examine the validity of the award. The contention is too broadly stated. Under Sec. 16(c) of the Act, the Court may remit the award for reconsideration where an objection to the legality of the award is apparent on the face of it. In cases of this, nature alone, the Court has the jurisdiction to examine the award: even if no objection is raised or the objection is barred by limitation. The very authority relied upon by Mr. Murty does not go beyond this limit. In this case there is no illegality apparent on the face of the award and no such question was raised in the Courts below. This Court has, therefore, no inherent jurisdiction to examine the legality of the award on the ground raised in the application under Sec. 33 which is barred by limitation. Mr. Murty's contention has no force and must be rejected.

    19. In view of my conclusions that the arbitrators had Jurisdiction to pass the award on account of the waiver of jurisdiction by Artatrana and the estoppel application to him and that the application filed by Artatrana challenging the validity of the award was barred by time, the third question raised by Mr. Panda does not arise for consideration. Even on merits, I am, however, satisfied that both the Courts below exercised their jurisdiction with material irregularity in allowing Artatrana to raise such a contention. In his application challenging the validity of the award, Artatrana never pleaded that the arbitrators misconducted themselves as some of the arbitrators did not take part at some stages of the proceeding.

    20. So far as this Court is concerned, there is no dispute me the legal position that there would be misconduct ??? the arbitrators act together in every stage of ??? arbitration proceeding, Dharmu Saboto v. Krushna S. Saboto, ILR (1956) Cut 222 : ((S) AIR 1956 Orissa 24. But whether some of the arbitrators did not take part in any stage of the proceeding must be pleaded and proved. In this case, there are neither pleadings nor evidence to prove that some of the arbitrators did not take part at some or any stage of the proceeding. Both the courts below recorded their conclusion merely from the fact that the depositions of some witnesses were not signed by all the arbitrators. It is elementary that the arbitrators do not constitute a Court and have not the trappings of a court. The mere fact that some depositions were not signed by all the arbitrators does not lead to the necessary conclusion that the non-signing arbitrators did not take part in the proceeding. That is a question of fact which must be pleaded and proved like any other essential fact. The finding of the Courts below is based merely on surmise and not on evidence and must be vacated. Mr. Panda's contention on this count must also prevail.

    21. The next point for consideration is the jurisdiction of this Court to interfere in Civ. Revision under Section 115 of the CPC. Under Sec. 39(1)(vi) of the Act, an appeal shall lie from an order setting aside an award, and under Sub-sec. (2) no second appeal lies. Under Section 115 ??? of the CPC, the High Court can interfere with the order of the Subordinate Court if it fails to exercise its jurisdiction so vested. Under Sec. 17 of the Act, where the Court sees no cause to remit the award or to set aside the award, it shall pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow. As I have already held, both the Courts below completely misconceived the law as to the application of doctrine of waiver and estoppel under the Act. Having so misunderstood the law, they came to a conclusion that the award was passed beyond time and that the arbitrators had no jurisdiction to pass the award, and that they failed to exercise jurisdiction vested in them under Sec. 17 of the Act to pronounce a judgment according to the award. It is the duty of the Court, therefore, to set aside the judgments of the courts below. The learned Sewer appellate Court exercised its jurisdiction illegally and with material irregularity in not holding that the application of Artatrana raising objections was barred by time under that misconception of law with regard to the question of limitation it exercised its jurisdiction of entertaining the objection not vested in it by law. This Court can therefore, set aside such an order under Section 115(a) of the CPC. In the result, the Civil Revision is allowed and the judgment of the Courts below are set aside. The petitioner is entitled to a judgment according to the award and a decree shall follow the judgment. The petitioner is entitled to costs throughout. Hearing fee of Rs. 100/- (rupees one hundred).

    JH/JHS/V.B.B

    22. Revision allowed.

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    Comments

    Ganesh Chandra Misra v. Artatrana Misra And Others Opposite Party.
    (May 6, 1964)