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Ishwardas Jagjivandas For v. Dosibai Widow Of Jehangirsha
Factual and Procedural Background
At the close of 1866 the applicant, representing one Ardeshirji Dhanjisha, called on the opponent for Rs. 1,15,068-14-2, alleged to be due as six instalments on two mortgages (Samvat years 1889 and 1903). The parties submitted the dispute to arbitration on 18 October 1866. The arbitrators made an award on 3 December 1866, which was filed by the First Class Subordinate Judge on 20 December 1866.
Several execution applications on the award were made and granted. The last darkhast (No. 19 of 1880) was rejected by the Subordinate Judge, Rav Bahadur Mangeshrav Balvant, on the ground that no judgment had been passed in terms of the award and therefore there was no decree to execute. That order rejecting the darkhast was confirmed by the High Court on appeal on 28 September 1882.
The applicants, having been arrested in execution proceedings, applied to the Subordinate Judge to pass judgment in terms of the award. The Subordinate Judge refused, giving two grounds: (1) not all proper parties were before the Court; and (2) the application was barred by Article 178, Schedule II of the Limitation Act, XV of 1877, because it had not been made within three years from 20 December 1866.
The applicants challenged the refusal and advanced points of construction concerning Section 327 of Act VIII of 1859 (and corresponding provisions in the Code of 1877) and contention as to whether the application to file the award was converted into a suit and whether an application to pass judgment according to the award was within the statute of limitations. The High Court considered prior interpretations and practice and delivered the opinion recorded here.
Legal Issues Presented
- Whether, upon filing, an application to file an arbitrators' award under Section 327 of Act VIII of 1859 (and corresponding sections in the Code of 1877) is to be treated as a suit in all respects or only for administrative/classification purposes.
- Whether the Court is required, upon filing of the award, to proceed to pass judgment according to the award followed by decree (i.e., whether any further application by the plaintiff is necessary to obtain judgment and decree).
- Whether an application (or attempt) to obtain judgment according to the award is barred by Article 178, Schedule II of the Limitation Act, XV of 1877 (a three-year limitation from filing of the award).
- Whether the defendants should be permitted, after a long lapse of time and previous executions, to show cause against filing the award on the ground of short notice (served 18 December 1866, award filed 20 December 1866).
Arguments of the Parties
Applicants' Arguments
- The application to file the award became converted into a suit by the direction in Section 327 of Act VIII of 1859 which states that the application "shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants."
- The words in Section 327 should be read as incorporating the procedure of Section 325 (judgment in terms of the award followed by decree), so that the Court was under a duty to pass judgment after the award had been filed and no further application was necessary.
- Consequently, an application to pass judgment according to the award was not an "application" within the contemplation of the Second Schedule of the Limitation Act of 1877 and was therefore not time-barred.
Respondent / Subordinate Judge's Arguments
- The Subordinate Judge refused to pass judgment on the ground that all proper parties were not before the Court.
- He also contended that the application to pass judgment was barred by Article 178, Schedule II of the Limitation Act, XV of 1877 because it had not been made within three years from the filing date (20 December 1866).
- Defendants sought leave to show cause against filing the award on the ground that they had only been served with notice on 18 December 1866 and the award was filed on 20 December 1866 (alleged insufficiency of notice).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shree Ram Chowdhry v. Denobundhoo Chowdhry, I.L.R. 7 Calc. 490 | Held that an application to file an award under the relevant provision was converted into a suit only for administrative/classification purposes; judges relied on absence of words found in Section 331 that would show full conversion. | The Court discusses the reasoning in this case, notes the reliance on the absence of particular words, but concludes that the same effect (full suit procedure) should be given to the language of Section 327 and corresponding provisions; treats the authority as persuasive but applies a broader construction. |
| Mana Vikerama v. Mallichery Kristnan Nambudri, I.L.R. 3 Mad. 68 | Similar holding to Shree Ram Chowdhry: application to file an award is converted into a suit only for administrative/classification purposes and order refusing to file an award is not appealable under the Civil Procedure Code of 1882. | Referred to as supporting the limited-conversion view; the High Court nevertheless prefers to construe Section 327 and corresponding provisions so that filing and enforcement follow the procedure applicable to awards, effectively treating the application as a suit for substantive purposes. |
| Ramadin v. Mahesh, I.L.R. 2 All. 471 | Held that an order made by the Court prior to passing judgment according to the award was not appealable because it was interlocutory, indicating that after registration an application was treated as a suit for some purposes. | The Court cites this decision as showing that a registered application may be regarded as a suit for purposes beyond mere classification; uses it to support the view that filing the award imports suit-like consequences. |
| Dandekar v. Dandekars, I.L.R. 6 Bom. 663 | Used to show that where the validity of an award is not disputed or has been established, the only remaining step is for the Court to pass judgment according to the award. | The Court relies on this authority to support the proposition that, once the award's validity is established, no separate application is necessary to compel the Court to pronounce judgment according to the award. |
| Kylasa Goundan v. Ramasami Ayyan, I.L.R. 4 Mad. 172 | Rule that the Limitation Act's provisions relating to applications apply to applications for the exercise of powers which the authority would not be bound to exercise without such application. | The Court follows this rule (as applied in the later cited Vithal Janardan case) and reasons that the present application to pass judgment was not the sort of application caught by the Limitation Act's provisions relating to applications. |
| Vithal Janardan v. Vithojirav Putlajirav, I.L.R. 6 Bom. 586 | Followed Kylasa Goundan; supports the proposition concerning when Limitation Act provisions relating to applications apply. | The Court follows this Court's prior ruling and applies the principle to conclude that the application to pass judgment according to the award was not within the contemplation of the Limitation Act's schedule of applications. |
Court's Reasoning and Analysis
The Court undertook a textual and purposive construction of the relevant procedural provisions (Sections 325-327 of Act VIII of 1859 and corresponding Sections 522-526 of the Code of 1877). It proceeded in a stepwise fashion:
- Construction of "shall be numbered and registered as a suit": The Court concluded that the direction that an application to file an award "shall be numbered and registered as a suit" should be given the same practical effect throughout the procedural Code. The Court rejected a narrow reading that would treat such registration as merely administrative, observing that the framing of the Code suggests uniformity of meaning for such phrases unless context indicates otherwise.
- Effect on procedure after filing the award: The Court read the provisions requiring judgment to be passed according to the award and for a decree to follow (Section 325 of the Code of 1859 and Section 522 of the Code of 1877) as implying that, once the award's validity is established and the award has been ordered filed, it is the duty of the Court to pass judgment according to the award. The Court analogised the duty to the general duty to pronounce judgment after trial (citing Section 198).
- Whether an application to pass judgment is within the Limitation Act's schedule of applications: The Court adopted the principle in Kylasa Goundan and Vithal Janardan that the Limitation Act's rules about applications apply to those applications seeking exercise of powers which the authority would not be bound to exercise without such application. Applying that test, the Court held that an application to pass judgment according to an award that has been filed and whose validity is established is not the sort of application contemplated by the Limitation Act's schedule — i.e., the application in this case was not time-barred.
- Reconciliation of differences in language between Sections of 1859 and 1877 Codes: Noting variations in phrasing (for example, "may be enforced" in Section 327 of 1859), the Court read these differences in light of the overall scheme of the Code and concluded they should not alter the substantive outcome. The Court considered that "may be enforced" should be read so far as to require the court to enforce the award in the procedural manner applicable to awards (i.e., "shall be enforced" as regards the Court's duty to pass judgment), preserving the procedural consequences of filing.
- Application to show cause about short notice: The Court considered the defendants' request to be allowed to show cause because notice had been served on 18 December 1866 while the award was filed on 20 December 1866. The Court noted the 20th had been the day named in the notice and, in the face of a sixteen-year lapse during which the award had been several times executed and the point had not been previously taken, found no reason to permit such belated challenge to the filing.
- Remedies and limitations on relief: The Court directed the Subordinate Judge to proceed to pass judgment according to the award and to follow with a decree, and then to dispose of the plaintiff's darkhast rejected on 28 September 1882. The Court refused the plaintiff's application that the decree be made nunc pro tunc, explaining the delay could not be said to be exclusively the act of the Court.
Holding and Implications
Holding:
The Subordinate Judge is directed to proceed to pass judgment according to the award, to be followed by a decree, and thereafter to dispose of the plaintiff's darkhast rejected on 28th September, 1882.
Additional directives and orders:
- The Court refused to make the decree nunc pro tunc.
- The Court declined to allow the defendants leave to show cause against filing the award on the ground of the short notice served in December 1866, given the delay of sixteen years and prior executions; the Court would not interfere with the filing.
- Parties to pay their own costs of this application.
Implications:
The direct effect is that the Subordinate Judge must now pass judgment and enter a decree in accordance with the arbitrators' award; the application to obtain judgment according to the award was held not to be within the category of applications caught by the Limitation Act's schedule of applications. The opinion does not expressly state any broader binding rule beyond the Court's construction and application of the procedural provisions to these facts.
1. The question in this case arises out of the following facts. At the close of 1866, the applicant having called on the opponent, as the representative of one Ardeshirji Dhanjisha, for the sum of Rs. 1,15,068-14-2 as the amount of six instalments alleged to be due on two mortgages executed in the Samvat years 1889 and 1903, the matter in dispute was submitted by the parties on the 18th October, 1866, to arbitration. The arbitrators made their award on 3rd December, 1866, and the same was filed by the First Class Subordinate Judge on 20th December, 1866. Several applications for execution of the award were subsequently made and granted. The last darkhast, however, No. 19 of 1880, was rejected by the Subordinate Judge, Rav Bahadur Mangeshrav Balvant, on the ground that no judgment had been passed in terms of the award, and that there was no decree to execute. The order rejecting the darkhast was confirmed by the High Court, on appeal, on 28th September 1882. Whatever differences of opinion may have existed as to the proper mode of procedure under Section 327 of Act VIII of 1859, and the corresponding section 526 of the code of 1877, it must be considered to have been well settled in this High Court, at the latest since the circular order was issued in 1880, that the proper course is to have judgment passed in terms of the award, to be followed by decree, as provided by Section 325 of Act VIII of 1859. The applicants, finding themselves arrested in their execution proceedings, applied to the Subordinate Judge to pass judgment in terms of the award, but he refused the application on the ground that all the proper parties were not before the Court, and also that it was barred by Article 178, Schedule II of the limitation Act, XV of 1877, not having been made within three years from the 20th December, 1866. With respect to this second ground of refusal, it was contended for the applicants that the application to file the award became converted into a suit by the direction contained in Section 327 of Act VIII of 1859, that the application "shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants." It was argued also that the provisions in section 325 as to the Court passing judgment in terms of the award and a decree following on it are incorporated in Section 327 by the words of the latter, which enable the award when filed to be "enforced as an award under the provisions of the chapter," and that it was the duty of the Court to pass judgment on the award after it had been filed, or, at any rate, that it was not necessary for the Court to be set in motion in order to do so, and that in either case, and whether the application was or was not converted into a suit, the application to pass judgment was not one within the contemplation of the second schedule of the Statute 'of Limitations of 1877. In Shree Ram Chowdhry. Denobundhoo Chowdhry I.L.R. 7 Calc. 490 and Mana Vikerama v. Mallichery Kristnan Nambudri I.L.R. 3 Mad. 68 it was held that an application to file an award, under Section 525 of the Civil Procedure Code of 1877, was only converted into a suit for administration purposes and for classification of business of the Court, and that an order refusing to file an award was not appealable under the Civil Procedure Code of 1882. In Ramadin v. Mahesh I.L.R. 2 All 471 however, an order made by the Court, previous to passing judgment according to the award, was held to be not appealable, because it was only an interlocutory order in a suit, and not included in Section 588, Act X of 1877, thus showing that the Court regarded the application as a suit, after it had been registered as such, for other purposes than mere classification. Both Mr. Justice Pontifex, and Mr. Justice Field, in the judgments in Shree Ram Chowdhry v. Denobundhoo Chowdhry I.L.R. 7 Calc. 490, rely on the absence of similar words to those which are to be found in Section 331, viz., that the Court shall "proceed to investigate the claim in the same manner and with like power as if a suit for the property had been instituted by the decree-holder against the claimant under the provisions of Chapter V." The learned Judges say that these words would have been unnecessary if the effect of the words, "shall be numbered and registered as a suit", were to convert the application into a suit to all intents and purposes. Assuming that to be so, we think that the same effect should be given to the language of Section 327 of the Code of 1859, and that of Section 526 of the Code of 1877. In both cases the object is clearly to explain the course to be pursued; and whether the Court be told to proceed to investigate the claim in the same manner as if a suit had been instituted, or that it shall order the award to be filed, and that the award "shall take effect" as an award made under the provisions of this chapter"--that is, as appears by Section 522, by "judgment being passed according to the award followed by decree" (a term only applicable to a proceeding in a suit)--the effect of such directions, in construing the words "shall be numbered and registered as a suit", ought, we think, to be the same. The present case, however, arises under Section 327 of the Civil Procedure Code of 1859, in which the language is "that if no sufficient cause be shown against the award, the award shall be filed, and may be enforced as an award made under the provisions of this chapter." These latter words have been construed by this Court, and indeed by most Courts, as directing that the same procedure should follow as in, the case of an award under Section 326. The conclusion to be drawn as to the meaning of the words "shall be numbered and registered as a suit" is necessarily the same. Moreover, in construing a code of procedure, we ought, we think, to give the framers of it credit for using a particular form of words in the same sense throughout the Code, unless the context clearly shows that it was intended to be used in a different or more restricted sense. As we do not find any evidence of such intention, either in Section 327 of the Code of 1859, or in Sections 525 and526of the Code of 1877, we think that the view taken by the Allahabad High Court is the correct one, and should be followed. If, then, the application be regarded as a suit, the proceedings in which, according to section 526 of the code of 1877, are to be identical, after the award has been filed, with those provided by Section 522, it would appear that it was the duty of the Court to proceed to pass judgment according to the award as soon as it was ordered to be filed. Now, it may be that it would be usual, as a matter of practice, for the plaintiff to ask the Court to pass judgment according to the award; but looking at the language of Section 325 of the Civil Procedure Code of 1859, and of Section 522 of the Code of 1877, we cannot think that any application would be necessary. The validity of the award had been either not disputed, or had been established--see Dandekar v. Dandekars I.L.R. 6 Bom. 663--and all that remained to be done was to pass judgment according to the award, and an application to do so was no more necessary than it would be to ask the Court to "pronounce judgment" after it has tried a suit on its merits, as it is enjoined to do by Section 198 of the Civil Procedure Code. If this be a correct view of the duty of the Court, we think that any application which may be made to it to pass judgment can only be regarded is drawing the attention of the Court to the provisions of the section. We agree with the ruling of the Madras Court in Kylasa Goundan v. Ramasami Ayyan I.L.R. 4 Mad. 172 followed by this Court in Vithal Janardan v. Vithojirav Putlajirav I.L.R. 6 Bom. 586 that "the provisions of the limitation act relating to applications must be held to apply to applications for the exercise, by the authority to which the application is addressed, of powers which it would not be bound to exercise without such application", and are, therefore, of opinion that the application in this case was not one within the contemplation of the Statute. It was said, however, that the language of Section 327 of the Code, of Civil Procedure of 1859, under which this case falls, is different from that of section 526 of the code of 1877. We think, however, that, looking at Sections 325, 326 and 327, the words in question must be construed so as to agree with what is expressed by the latter words oil Section 326, where it is said that the "provisions of the chapter should be applicable to the enforcement of the award". In other words, the expression "may be enforced" ought, we think, to be read as "shall be enforced", so far as it applies to the Court, although, of course, the enforcement by execution of the decree would be permissive, as regards the plaintiff. We think, therefore, that the difference in the language of Section 327 of the Code of 1859 cannot affect the conclusion already arrived at on sections 522 and 526 of the code of 1877, and that the plaintiff's application, to pass judgment according to the award, was not one within the contemplation of the Statute of Limitations.
2. We have been asked to allow the defendants leave to show cause against filing the award, on the ground that they were only served with notice on 18th December, 1866, and the award was filed on the 20th December, 1866. It is not, however, denied that the 20th December was the day named in the notice; and we see no reason, and after the lapse of sixteen years during which time the above objection has never been taken, although the award has been several times executed, we should certainly not be disposed, even if we had the power which may well be doubted, to interfere with the filing of the award.
3. The Subordinate Judge must, therefore, be directed "to proceed to pass judgment according to the award" to be followed by decree, and to afterwards proceed to dispose of the plaintiff's darkhast rejected on 28th September, 1882. We do not think we ought to accede to plaintiff's application that such decree should be made nunc pro tune, as the delay cannot, we think, be said to be the exclusive act of the Court.
4. Parties to pay their own costs of this application.
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