Citation Codes

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Case Number

F.A.O 262 of 1972

Attorney(S)

D.N Awasthy, Advocate,
Anand Sarup, Advocate with Shri I.S Balhara, Advocate, ,

Judges

D.S Tewatia, J.

Acts

Section 14 read with Section 17 of the Indian Arbitration Act. 1940 (hereinafter referred to as the Act)
Section 17, Arbitration Act provisions of Article 178 of the Limitation Act
Sections 14 (1), (2), 15, 16, 17 and 38 of the Arbitration Act. 1940
provisions of the Arbitration Act and the Limitation Act
Section 14 the provisions of Article 178. Limitation Act,
SECTION 17 ARBITRATION ACT
provisions of Article 119 of the Limitation Act. 1960
provisions of Article 178 of the Limitation Act
provisions of Article 119 of the Limitation Act,
SECTION 38 ARBITRATION ACT
Section 17 to which provisions of Article 178
Sections 15, 16 and 17 of the Arbitration Act
Section 14/17 of the Indian Arbitration Act
Article 119 of the Limitation Act of_1963).
Article 119 of the Limitation Act, 1963
Section 14(1) of the Arbitration Act
SECTION 14 ARBITRATION ACT
Article 158 of the Limitation Act
SECTION 44 ARBITRATION ACT
Article 119 of the Limitation Act
SECTION 5 LIMITATION ACT
Sub-section (1) of Section 14
ARBITRATION ACT 1940
Rule 12 of the Rules
Section 14(2)

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Smart Summary

Structured Summary of the Opinion — D.S. Tewatia, J.

Factual and Procedural Background

M/s Frick India Limited (the applicant/petitioner) filed an application under Section 14 read with Section 17 of the Indian Arbitration Act, 1940 asking that an award dated 29 July 1970 be made the rule of Court and that judgment and decree be given in terms thereof. The respondent was described as the Executive Engineer, Project Public Health Division No. 4, Chandigarh (Government). The respondent contested the application inter alia on the grounds that the application was barred by limitation and was not maintainable against the respondent as described.

The trial Court framed two issues: (1) whether the application under Section 14/17 of the Arbitration Act was within time; and (2) whether the application against the office of the respondent was maintainable. The trial Court decided these issues against the applicant. The present proceedings arise from F.A.O. No. 262 and Civil Revision No. 1105 of 1972, which the Court ordered to be treated together (the appeal was treated as a revision).

Relevant factual chronology stated in the opinion: the arbitrator announced and signed the award on 29 July 1970 and forwarded a copy to the parties by registered post on 30 July 1970. The applicant presented its application to the Court on 1 October 1971 (about one year and two months later). Prior to filing, the applicant had sent reminders to the respondent for payment; when no reply was received, the applicant's counsel wrote to the arbitrator requesting that the award be filed in Court. The arbitrator directed the applicant to apply to the Court (letter dated 12 August 1971), and thereafter the Court application was presented. The applicant also filed an application under Section 5 of the Limitation Act seeking condonation of delay.

Legal Issues Presented

Whether, without first legally getting the award filed in Court, it is competent for any of the parties to the arbitration to seek to have the award made the rule of the Court and obtain a judgment and decree in terms thereof.
Whether the application under Section 14/17 of the Arbitration Act was within time (i.e., barred by limitation).
Whether the application against the office of the respondent (as described) was maintainable.

Arguments of the Parties

Applicant / Petitioner's Arguments (as recorded)

Article 119 of the Limitation Act (equivalent to the old Article 178) does not apply to the present case because the present application was one under Section 17 of the Arbitration Act, merely intended to have the award enforced; Article 119 deals with filing of the award in Court under Section 14 only.
Reliance was placed on precedent (Jai Kishen v. Ram Lal Gupta and others) to support the contention that an application for enforcement under Section 17 is not covered by Article 119 (Article 178 formerly).
The parties had possession of the award (or copy) — submission advanced that where parties are in possession of the original award, they need not first get the award filed by the arbitrator and could move directly to have it made the rule of Court under Section 17.
It was (somewhat briefly and later) contended that the applicant did not have legal notice of the signing of the award under Section 14(1), with the consequence that limitation would not start to run (this contention was noted as not having been pleaded earlier and was later rejected by the Court).
Application for condonation of delay was filed under Section 5 of the Limitation Act (seeking to excuse the delay in applying to Court).

Respondent's Arguments (as recorded)

The application was barred by limitation and was not maintainable as framed against the respondent in the form stated.
The necessary procedural prerequisite to the steps in Sections 15, 16 and 17 of the Arbitration Act is that the award must first be legally filed in Court in terms of Section 14; absent such filing the subsequent steps would not legally follow and allowing otherwise would bypass and render Section 14 redundant. (Reliance placed on the Division Bench decision in Seth Ramrichhpal Sirva v. Aimer Traders.)

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jai Kishen v. Ram Lal Gupta, AIR 1944 Lah 398	Held that Section 14 of the Arbitration Act was not exhaustive; an application by a party for enforcement could be made in absence of a clear provision to the contrary and an application under Section 17 was not covered by Article 178 (equivalent to Article 119 of Limitation Act, 1963).	The judgment was discussed as supporting the view that Article 119/178 does not apply to Section 17 applications. The Court, however, expressed inability to agree with that view in light of later Supreme Court authority (Kumbha Mawji) which, in the Court's view, rules out filing by parties without arbitrator's authority.
Radha Kishen v. Madho Krishna, AIR 1952 All 856	Allahabad High Court followed Jai Kishen, holding Article 178 applies to Section 14 but not to Section 17; distinguished the distinctions between Sections 14 and 17.	The Court noted this follows Jai Kishen but stated it could not agree with that line of authority in view of Supreme Court pronouncements subsequently considered (Kumbha Mawji).
Hazi Rahmetulla v. Chaudhari Vidva Bhushan, AIR 1963 All 602	Allahabad High Court endorsed its earlier view that Article 178 was not attracted to applications under Section 17 and that describing an application as under Section 14(2) would be mere surplusage if in reality it was not under that section.	The Court recorded this authority and declined to follow its reasoning, referring to Supreme Court authority (Kumbha Mawji) and statutory interpretation supporting the requirement that the award be filed by the arbitrator or with his authority.
L. Ganga Ram v. L. Radha Kishan, AIR 1955 Punj 145	Division Bench found notice under Section 14(1) had not been given; held applications under Section 17 were not covered by Article 178 and relied on prior observations (including John B. Paes v. Soomar) to support the practical consequence that a party in possession should be able to file the award.	The Court discussed this decision and noted certain observations were obiter. The Court disagreed with the view that possession of the award by a party automatically permits filing in Court without arbitrator's authority, relying on Supreme Court authority (Kumbha Mawji) to the contrary.
John B. Paes v. Soomar, AIR 1943 Sind 33	Observation (Lobo, J.) that a person who obtained possession of an award through Court assistance under Section 38 must have the right to file it in Court, otherwise the Court's assistance would be nugatory.	Noted by earlier Courts and influential in their reasoning. The present Court rejected the broader consequence as inconsistent with the Supreme Court pronouncement in Kumbha Mawji and statutory text requiring arbitrator's authority for filing.
Kumbha Mawji v. Dominion of India (Union of India), ATR 1953 SC 313 (cited as AIR 1953 SC 313)	Supreme Court held Section 14(2) implies that even where award or signed copy was delivered to the parties by the arbitrator, parties could not file it in Court without prior authority of the arbitrator/umpire; such authority must be specifically alleged and proved; mere delivery does not imply authority to file.	The Court treated this Supreme Court decision as controlling. It concluded that filing of the award in Court can only be by the arbitrator (suo motu or with authority) or in response to Court summons; therefore a party in possession cannot unilaterally file and then seek judgment/decree under Section 17. This authority was decisive for the Court's conclusion that the petitioner's application was incompetent.
Seth Ramrichhpal Sirva v. Aimer Traders, AIR 1963 Rai 87 (as cited)	Division Bench held that judgment and decree based on an award is not permissible without proper filing of the award under Section 14; enforcement applications without filing are unmaintainable and limitation consequences follow from proper application of Section 14 and Article 158 (as cited in that decision).	Respondent relied on this decision. The Court recorded the Division Bench's language and used it to demonstrate the view that filing under Section 14 is the proper procedural route; the Court's own conclusion aligned with the necessity of filing but rested primarily on the Supreme Court authority.
Satish Kumar v. Surinder Kumar, AIR 1970 SC 833	The Supreme Court observed that an award, even without being made a rule of Court, is a valuable document and not a scrap of paper.	The Court noted the observation but explained it did not advance the petitioner's case as to entitlement to obtain a decree without compliance with Section 14; rather it supported the proposition that awards may be valuable for purposes other than obtaining a decree, and Section 38 helps parties obtain the award document from an unwilling arbitrator for those purposes.

Court's Reasoning and Analysis

The Court began by identifying the primary question: whether a party can, without first legally getting the award filed in Court under Section 14, seek to have the award made the rule of Court and obtain a judgment and decree under Section 17.

The Court set out relevant statutory provisions (Sections 14(1), 14(2), 15, 16, 17 and 38 of the Arbitration Act, 1940 and Article 119 of the Limitation Act, 1963) and the factual chronology showing the award was signed on 29 July 1970, a copy forwarded on 30 July 1970 by registered post, and that the application to make the award rule of Court was filed on 1 October 1971.

The petitioner argued that Article 119 (which prescribes limitation for filing an award in Court) did not apply to an application under Section 17 and relied on older High Court decisions holding that an application under Section 17 is not governed by Article 119/178. The Court reviewed those authorities but identified a controlling Supreme Court authority (Kumbha Mawji) which, in the Court's view, requires that filing of an award in Court must be done by the arbitrator or by a party only with the arbitrator's prior authority or upon Court summons.

The Court explained the effect of Kumbha Mawji: Section 14(2) implies that even where a copy of the award is delivered to parties by the arbitrator, the parties cannot file it into Court without prior authority of the arbitrator/umpire. Authority to file must be specifically alleged and proved. Consequently, a party in possession cannot unilaterally file the award and then seek a decree under Section 17.

The Court further relied on Rule 12 of the High Court Rules framed under Section 44 of the Arbitration Act (which provides that an application for judgment in terms of an award shall not be made until after expiration of thirty days from date of service of the notice of filing the award) as reinforcing the procedural sequence that the award must first be filed in Court and notice given before invoking the Court's power under Section 17.

The Court considered and rejected the argument that Section 38 could be interpreted to permit a party who obtained the award (even via Court assistance) to file it in Court without arbitrator's authority so as to obtain a decree. In the Court's view, such an interpretation is inconsistent with the Supreme Court's pronouncement in Kumbha Mawji.

On limitation, the Court found that the petitioner had been sent a copy of the award by registered post, which in the Court's view constituted due notice in law under Section 14(1), and therefore the limitation period began to run from that date. The application was presented after about one year and two months and the Court held the petitioner had not made out a case for condonation of delay under Section 5 of the Limitation Act.

On maintainability against the respondent, the Court held the actual party impleaded was the Government (though misdescribed). The misdescription was regarded as curable and not fatal to maintainability; the application was not bad for non-joinder of a necessary party as it could be corrected by the Court.

Holding and Implications

Holding: The Court concluded that the petitioner's application under Section 14 read with Section 17 of the Arbitration Act was both incompetent and barred by limitation, and therefore the F.A.O. and Civil Revision were dismissed with costs.

Implications:

Direct effect on the parties: the appeal and the revision were dismissed and the petitioner failed to obtain a decree in terms of the award; the application for condonation of delay was rejected; the misdescription of the respondent was treated as a curable error and not a substantive bar to maintainability.
Procedural consequence emphasized by the Court: before invoking Section 17 to obtain judgment and decree under an award, the award must be legally filed in Court by the arbitrator (or filed with the arbitrator's prior authority or pursuant to Court summons) in accordance with Section 14 and related procedural rules (for example, the High Court Rule 12 cited).
The opinion records disagreement with certain earlier High Court decisions that allowed, in substance, a party in possession of an award to file it and proceed under Section 17 without the arbitrator's authority; the Court grounded its conclusion principally on the Supreme Court decision in Kumbha Mawji and the statutory text. The opinion does not explicitly assert establishment of a new binding precedent beyond its reasoning and outcome in this case.

Disposition: Both the appeal (F.A.O. No. 262 of 1972) and the Civil Revision (Civil Revision No. 1105 of 1972) were dismissed with costs.

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Frick India Limited, Jeewan Vihar, Parliament Street, New Delhi, v. The Executive Engineer And Another,

JUDGMENT D.S. Tewatia, J.

1. F. A. O. No. 262 and Civil Revision No. 1105 of 1972 both arise out of an application filed bv M/s. Frick India Limited, Jeevan Vihar 3-Parliament Street, New Delhi, under Section 14 read with Section 17 of the Indian Arbitration Act. 1940 (hereinafter referred to as the Act) for making award dated 29th July, 1970 the rule of Court and seeking a iudgment and decree in terms thereof.

2. The respondent described as Executive Engineer. Project Public Health Division No. 4, Chandigarh (Government) contested the abovesaid application, inter alia, on two grounds (i) that the said application was barred bv limitation, and (ii) that it was not maintainable against the respondent.

3. The trial Court framed the following two issues which it decided against the applicant (now petitioner in this Court) :--

1. Whether the application Under Section 14/17 of the Indian Arbitration Act is within time ?

2. Whether the application against the office of the respondent is maintainable?

4. The question that primarily falls for determination is as to whether without first legally getting the award filed in the Court it is competent for anv of the parties to the arbitration to seek to have it made the rule of the Court and. obtain a judgment and decree in terms thereof ?

5. In order to appreciate the question posed above a few relevant facts must be noticed.

6. The arbitrator had announced and signed the award in Question on 29th of july, 1970. He forwarded a copy thereof to the parties bv registered post the next day. i. e., on 30th July, 1970. The applicant M/s. Frick India Limited presented the application in question on 1st of October, 1971, i.e. almost after an year and two months from the date on which the copy of the award had been forwarded to it bv the arbitrator. Prior to the filing of the said application, the applicant had sent 3/4 reminders to the respondent Executive Engineer for making payment of the amount envisaged in the award. Having received no reply from the respondent, the applicant's counsel, Mr. K. R. Kalia wrote to the arbitrator to file the award in the Court, who, in turn, directed him vide his letter dated l2th August. 1971, Exhibit P-l, to apply to the Court and it was thereafter that the application in question was presented to the Court at Chandigarh on the date noticed above.

7. It appears that, after the reply of the respondent to the application, the applicant in order to get the delay condoned filed an application under Section 5 of the Limitation Act as well.

8. The learned counsel for M/s. Frick India Limited has prayed that F. A. O. 262 of 1972 may also be treated as Civil revision as no F. A. O. from the order under challenge in this Court is competent. This has not been objected to bv the learned counsel for the respondent. There being string of authorities to the effect that an appeal can be treated as a revision. I order that the F. A. O. No. 262 of 1972 be treated as civil revision petition.

9. Before dealing with the contention advanced on behalf of either side the relevant provisions of the Arbitration Act and the Limitation Act that are to figure in the judgment be noticed. Sections 14 (1), (2), 15, 16, 17 and 38 of the Arbitration Act. 1940 are as under:--

"Section 14. (1) 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.

(2) The arbitrators or umpire shall, at the request of anv oartv to the arbitration agreement or any person claim-ins under such party or if so directed by the Court and upon payment, of the fees and charges due in respect of the arbitration and award and of the costs and charges of filing the award, cause the award or a signed copy of it, together with any depositions and documents which may have been taken and proved before them, to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award.

(a) where the award has left undetermined anv of the matters referred to arbitration, or where it determines any matter not referred to arbitration and such matter cannot be separated without affecting the determination of the matters referred; or

(b) where the award is so indefinite as to be incapable of execution; or

(2) Where an award is remitted under Sub-section (1) the Court shall fix the time within which the arbitrator or umpire shall submit his decision to the Court:

Provided that any time so fixed mav be extended by subsequent order of the Court.

(3) An award remitted under subsection (1) shall become void on the failure of the arbitrator or umpire to reconsider it and submit his decision within the time fixed.

Section 17. Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it oroceed to pronounce judgment according to the award. and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with the award.

Section 38. (1) If in any case an arbitrator or umpire refuses to deliver his award except on payment of the fees demanded by him, the Court may on an application in this behalf, order that the arbitrator or umpire shall deliver the award to the applicant on payment into Court bv the applicant of the fees demanded, and shall, after such inquiry if any, as it thinks fit, further order that out of the money so Paid into Court there shall be paid to the arbitrator or umpire by way of fees such sum as the Court may consider reasonable and that the balance of the money, if any shall be refunded to the applicant.

(2) An application under Sub-section (1) may be made by anv party to the reference unless the fees demanded have been fixed by written agreement between him and the arbitrator or umpire, and the arbitrator or umpire shall be entitled to appear and be heard on any such application.

(3) The Court may make such orders as it thinks fit respecting the costs of an arbitration where any question arises respecting such costs and the award contains no sufficient provision concerning them."

Article 119 of the Limitation Act, 1963 is as under :--

Description of application.

Period of limitation.

Time from whioh period begins to run.

"119 Under the Arbitration Act, 1940

(a) for the filing in Court of an award;

Thirty days.

The date of service of tbe notice of the making of the award;

(b) for setting aside an award or getting an award re mitt. deration.

Thirty days.

The date of service of the notice of the filing of the award.

10. Mr. Awasthy, learned counsel for the petitioner has urged that the provisions of Article 119 of the Limitation Act. 1960 are not attracted to the facts of the present case go as to bar the present application-- it being one under Section 17, Arbitration Act, merely intended to have the award in question enforced, while the said provisions of limitation act deal with the applications for the filing of the award in the Court in terms of Section 14 of the Arbitration Act only.

11. In support of his submission, he has placed reliance on Jai Kishen v. Ram Lal Gupta. AIR 1944 Lah 398: L. Ganga Ram v. L. Radha Kishan. AIR 1955 Punj 145: Radha Kishen v. Madho Krishna, AIR 1952 All 856: Hazi Rahmetulla v. Chaudhari Vidva Bhushan, AIR 1963 All 602.

12. In Jai Kishen's case, AIR 1944 Lah 398 (supra), Abdur Rahman. J., held that Section 14 of the Arbitration Act was not exhaustive and that an application by a partv for the enforcement of the award could be made in the absence of a clear provision in the Act to the contrary, and treating the application in that case to be one under Section 17, held that an application of the kind was not covered by the provisions of Article 178 of the Limitation Act (which is equivalent to Article 119 of the Limitation Act of_1963).

13. The Allahabad High Court in Radha Kishen's case, AIR 1952 All 856 (supra) followed the ratio of Jai Kishen's case, AIR 1944 Lah 398 (supra). Bind Basni Prasad, J., who delivered the iudgment for the Court, made the following observations:--

"That is an Article which applies to applications made under Section 14 of the Act and not to those under Section 17. The distinction between these two sections is that under Section 14 the arbitrator is called upon to file the award while under Section 17 the prayer is that the award may be made a rule of the Court and a judgment and decree may be pronounced accordingly. In the present case there is evidence to show that a copy of the award was given bv the arbitrator to Madho Kishan. Indeed it was filed by Madho Kishan along with his application under Section 17 read with Section 28 of the Act. The case reported in AIR 1944 Lah 398 is on all fours with the present case. Article 178 is not applicable to the present case."

In Hazi Rahmetulla's case, AIR 1963 AH 602 (supra) the Allahabad High Court endorsing its earlier view in Radha Kishen's case and almost following the view of Abdur Rahman. J., that to an application under Section 17, Arbitration Act provisions of Article 178 of the Limitation Act are not attracted, added that even if that application is described as an application under Section 14(2) that would be a mere surplusage if in reality it is not an application under that section.

14. In Ganga Ram's case, AIR 1955 Punj 145 (supra) the facts were that the award dated 21st January. 1943 was signed bv both the parties to the arbitration and was got registered. Neither of the parties took any action thereafter on the award till 23rd of June. 1944 when Radha Kishan instituted Civil Suit No. 313 of 1944 for declaration that by the award in question he had become owner of the property subject to a charge of the defendant to the extent of Rs. 3,000/-. Second appeal arising out of the said suit was pending in the High Court when Radha Kishan made an application under Section 17 of the Arbitration Act. 1940 seeking decree in accordance with the award. That application was resisted primarily on two grounds : (1) that no application under Section 17 of the Act was competent, and (2) that the application was barred by time. The matter was eventually placed before a Division Bench consisting of Harnam Singh and Kapur. JJ. Both the learned Judges, who wrote separate opinions, found as a fact that notice as envisaged bv Section 14(1) of the Act was not given to the parties and that their signing of the award would not tantamount to a notice under Section 14(1). Both the learned Judges then held that the application being under Section 17 and not under Section 14 the provisions of Article 178. Limitation Act, which cover application under Section 14 of the Act only, were not attracted to the application from which the proceedings had arisen. The learned Judges besides referring to the iudgment of Abdur Rahman. J. in Jai Kishan's case, AIR 1944 Lah 398 also took note of the following observations of Lobo, J., appearing in John B. Paes v. Soomar, AIR 1943 Sind 33:--

"Now it follows that a person who has obtained possession of an award through the assistance of the Court under Section 38 must have the right to file it in Court. Otherwise, he will have sought the assistance of the Court to no practical purpose whatever and the Court will have made an order which affords the applicant no material relief."

15. Mr. Anand Swaroop. learned counsel for the respondent on the contrary urged that the condition precedent for the action evisaged in Sections 15, 16 and 17 of the Arbitration Act is first to legally have the award filed in the Court and if the award has not been got so filed in the Court in terms of Section 14. then the other steps would not legally follow. To hold otherwise, argued the learned counsel, would be tantamount to the bye passing of the provisions of Section 14 of the Act and rendering them redundant. He sought to draw sustenance for his submission from the following observations of a Division Bench of Rajasthan High Court in Seth Ramrichhpal Sirva v. Aimer Traders. AIR 1963 Rai 87 :--

"The necessary implication of the position stated above is that a judement and decree on the basis of an award is not permissible without the Droper filing of the award under Section 14 of the Act. In fact, the idea of an application accompanied bv an award containing a mere prayer for iudgment and decree on the basis of an award without causing the award (to be ?) filed under Section 14 is foreign and repugnant to the language of Section 17 because such an application does not contemplate the filing of an award and giving notice thereof to the parties. In such a case, there can be no commencement of the period of limitation for an application under Article 158 of the Limitation Act to get the award set aside qr remitted. It follows that a period of limitation, therefore, would never expire with the result that on giving proper effect to the language of Section 17 a iudgment and decree can never be passed on such an application.

On a consideration of the various provisions in conjunction we have no hesitation in coming to the conclusion that an application for iudgment and decree in terms of the award without causing the filing of the award is not contem-pated bv Section 17 and is unmaintainable............ we feel inclined to come to the conclusion that the proper procedure for the enforcement of the award is to commence appropriate proceedings for causing the award filed in Court and then to take farther steps and that a mere application tor enforcement of the award without getting it filed is not maintainable."

16. After giving the matter my careful consideration. I am of the view that the application of the petitioner under Section 14 read with Section 17 of the Arbitration Act was both incompetent and barred by limitation.

17. Mr. Awasthy. learned counsel for the petitioner argued that the position, where the parties had been in possession of the original award or copy thereof, be distinguished from the one where the parties to the arbitration though had been served with a notice in terms of Sub-section (1) of Section 14 but had not been supplied by the arbitrator either the original award or a copy thereof in that while in the latter contingency if the arbitrator fails to cause the award to be filed in the Court on his own the parties to the arbitration shall have to seek the assistance of the Court for getting the award filed and thus attracting the provisions of Article 119 of the Limitation Act, in the former contingency, the parties need not do any such thing as they could merely move on to the next staee bv applying to the Court to have the award made a rule of the Court.

18. I am afraid this short circuiting is not permitted bv law.

19. In Kumbha Mawji v. Dominion of India (Now the Union of India). ATR 1953 SC 313, their Lordships of the Supreme Court have held that Section 14(2) clearly implied that even where the award or a signed copy thereof was in fact delivered to the parties bv the arbitrator, they could not file it into Court without the prior authority of the umpire (or the arbitrator as the case mav be) for doing so. Further where the awards were handed over by the umpire to the party, it could not be assumed that the mere handing over of the awards necessarily implied the authority of the umpire to file the same into Court on his behalf. That authority had to be specifically alleged and proved. In the absence of such authority, the filing of the awards by the party could not be the filing thereof by the umpire.

20. The ratio of Kumbha Mawji's case. AIR 1953 SC 313 as I understand, rules out in clear terms the filing of the award by the parties to the arbitration on their own. The award, therefore, could legally be filed in the Court only by the arbitrator either suo motu or .through anv of the parties to the arbitration with his prior authority or in response to the summons of the Court when moved to dp so bv anv of the parties to the arbitration in the contingency where he is reluctant to file the award in the Court. If that be so. i. e., if a partv to the arbitration stands precluded even from filing the award in the Court although it had the original award with it. without the authority of the arbitrator or umpire, then how such a partv could get the award in its possession made a rule of the Court and secure a iudgment and decree in terms thereof?

21. Rule 12 of the Rules framed by the High Court under Section 44 of the Arbitration Act, which is in the following terms, lends strength to the view that first the award has to be filed in the Court and it is thereafter that the authority of the Court under Section 17 can be invoked to pass a Iudgment and decree in terms thereof:--

"12. Limitation for application for Judgment on Award.-- An application for judgment in terms of an award shall not be made until after the expiration of 30 days from the date of service of the notice of filing the award."

22. Now coming to the consideration of the Division Bench decision of Lahore High Court, suffice it to mention that in that case notice envisaged under Section 14(1) of the Arbitration Act had not been served on the parties to the arbitration. Article 119 of the Limitation Act (which is equivalent to article 178 of the old act) envisages the date of such notice as the starting point of limitation. Since no notice was given, so the limitation did not start and the contention that the application was barred by limitation was clearly futile. So the observation that application was under Section 17 to which provisions of Article 178 did not apply were clearly obiter dicta.

23. It appears that both Abdur Rahman. J., as also the Judges constituting the Division Bench in Ganga Ram's case. AIR 1955 Puni 145 (supra) were much swayed bv the observations of Lobo. J. in AIR 1943 Sind 33 in regard to the purpose that provisions of Section 38 of the Arbitration Act are intended to serve.

24. I am afraid the provisions of Section 38 of the Arbitration Act cannot, in view of the clear pronouncement of their Lordships of the Supreme Court in Kumbha Mawji's case, AIR 1953 SC 313 (supra), be interpreted to give sustenance to the view that if anv of the parties to the arbitration sets into possession of the award, either from the arbitrator himself or through the instrumentality of the Court bv virtue of the provisions of Section 38 of the Arbitration Act. it acquires the right to file the same in the Court without the authority of the arbitrator and then straightway seek a judgment and decree of the Court in terms thereof. I. therefore, find myself, with respect, unable to agree either with the view expressed by Abdur Rahman. J., or with that of the Allahabad High Court in Radba Kishen's case, AIR 1952 All 856 or the obiter dicta of Harnam Singh and Kamir. JJ. in Ganea Ram's case, AIR 1955 Puni 145 (supra).

25. Mr. Awasthy. learned counsel for the petitioner then invited my attention to a decision of the Supreme Court in Satish Kumar v. Surinder Kumar. AIR 1970 SC 833 wherein their Lordships had held that an award even without being made a rule of the Court is a valuable document and not a scrap of paper. I do not understand how this observation of their Lordships advances the case of the learned counsel, if anything, it rather strengthens the view that the award even without its being made a rule of the Court is a valuable document in itself and the parties to the arbitration may need the same for a purpose other than the obtaining of a decree from the Court in terms thereof, and the provisions of Section 38 of the Arbitration Act were intended to help such a party tp secure the same from an unwilling arbitrator with the help of the Court.

26. As for the maintainability of the application in question against the respondent, I am of the view that in fact the party impleaded was the Government though it had not been happily described. Instead of mentioning Government of India through the Executive Engineer, Project Punjab Health Division No. 4, Chandigarh, it (the applicant) had mentioned "Executive Engineer, Proiect Pun-lab Health Division No. 4. Chandigarh". That is a case of mere misdescription which the Court at any time can order to be corrected. I. therefore, hold that the application is not bad on account of non-joinder of the necessary Party.

27. Now coming to the condonation of delay. I may observe that the petitioner has been highly nepligent and no case whatsoever has been made out for the condonation of delay.

28. Before parting with the iudg-ment yet another contention advanced somewhat half-heartedly by Mr. Awasthy be noticed. He has urged that the applicant-appellant (petitioner) did not have legal notice of the signing of the award, as envisaged under Section 14(1) of the Arbitration Act and. therefore, the question of application in question being barred bv limitation would not arise.

29. That this never had been the case of the appellant (petitioner) at any stage, not even in the grounds of petition in this Court apart, it would be pertinent to observe that the applicant-appellant (Petitioner) was sent a copy of the award through registered post and it cannot be imagined that this had not been done by way of notice to the parties to the arbitration in terms of Section 14(1). In anv case, the receipt of the copy of the award by the applicant from the arbitrator through registered post is, in my view, a due notice in the eye of law in terms of section 14(1). i, therefore, repel the contention advanced bv the learned counsel as absolutely baseless.

30. For the reasons stated, both the F. A. O. and the Civil Revision are dismissed with costs.

31. Appeal and revision dismissed.

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