Dayal, J.:— On the 18th of September, 1945 Mst. Lachhmi Devi, predecessor-in-interest of the appellants, filed an application under section 33 of the Arbitration Act, X of 1940, in the court of the Civil Judge, Agra, praying that in view of the allegations in the application the award dated the 6th April 1944 be set aside. This application was dismissed or, the 30th September 1947 on the around that it was not maintainable having been presented before the award had been filed in the court. Against that order is the present appeal.
It is not disputed that final orders on this application could not have been passed in the absence of the award. The award had to be before the court to enable it to decide the matter. The main contention is that the appellants could not have forced the arbitrators to file the award in court and that, therefore, it could not be the law that an application under section 33 of the Act could only follow the filing of the award.
The cases relied upon by the learned Civil judge for the view he adopted are sought to be distinguished on the ground that those cases related to applications for the setting aside of the award. The distinction drawn is that the application under section 33 of the Arbitration Act is not an application for the setting aside of the award even when it wants the court to determine the validity of an award. Strictly speaking an application under section 33 for determining the question whether, an award is invalid need not make a prayer for the setting aside of the award and therefore, does not amount to an application for the setting aside of the award. If an application under section 33 be of such a nature, then an order passed on that application would not be an order for the refusal to set aside an award and, therefore, would not be appealable under section 39 of the Arbitration Act. In this case, however, the application itself asked for the setting aside of the award when it prayed that,
“panch faisla morkha 6th April, 1944…. mustarid farmaya jawe.”
It follows, therefore, that the cases relied upon by the court below would be applicable to the present case.
These cases are Raianji Virpal and Co. v. Dhiraji Lal Manni Lal, Bengal Jute Mills v. Jeoraj Hira Lal and Bengal Silk Mills Co. v. Aisha Ariff. This point actually did not arise in the last mentioned case, but opinions were expressed on this question in view of the arguments which were addressed in that case.
When it is not disputed that the award should be before the court in order that the court may be in a position to decide about its validity it must ordinarily follow that an application for setting aside the award should be made after the award has been filed.
Sections 14(2), Arbitration Act, provides for the filing of the award at the request of the parties or under the directions of the court and then provides that the court shall thereupon give notice to the parties of the filing of the award.
A party is free to apply to the proper court and to request it to direct the arbitrators to file the award. The Court cannot give any such directions suo motu. It has to be approached. The arbitrators comply with the directions of the court upon payment of the necessary amount required for the various expenses mentioned in section 14(2) of the Act. This makes it absolutely essential that the court be moved by some party before it would direct the arbitrators to file the award. Further, there is limitation for an application for the filing of an award. This also would indicate that the court is not to direct an arbitrator to file an award suo motu. It has to be moved in time by a person interested in the filing of the award.
After the award is filed, the court has to give notice to the parties and it is within 30 days of the service of this notice that a party can file an application for the setting aside of the award or for the remitting of the award for re-consideration. Ordinarily, therefore, it must follow that the filing of the award must precede an application for the setting aside of the award. We are, therefore, of opinion that an application under section 33 for an order about the validity of an award should be made only after the award has been filed, and that any such application before the filing of the award would be premature and may be incompetent.
Even if any such application filed before the filing of the award be not absolutely incompetent, we are of opinion that it is essential that it should be made either after an application under section 14(2) for the order directing the arbitrator to file an award has been made or it should be accompanied by such an application. To file such an application, otherwise, would be inviting a court to take an action which it cannot possibly take and, therefore, must be incompetent. In the present case, neither an application under section 14(2) of the Act had been made before the filing of this application under section 33 nor was any such application made during the interval of about two years when the case remained pending in the court below. In the circumstances, it must follow that the order of the court below was correct.
We, therefore, dismiss this appeal with costs.
Appeal dismissed.