The Judgment of the Court was as follows:—
Mukherjea, J.:— This appeal is on behalf of the Defendants Nos. 6 and 7 and is directed against a final decree passed on an award. The Plaintiffs instituted a suit for partition against a number of Defendants and the matter in dispute was referred to arbitration with the consent of all the parties. The arbitrator filed an award on 19th July, 1935, on the basis of which the preliminary decree in the partition suit was passed on the 31st July, 1935. The reference contemplated another award by the arbitrator and that was filed on 2nd January, 1936 and on that date the Court recorded the following order in the order sheet:
“Arbitrator filed award. To 13-1-36 for final disposal. Parties to file objection, if any, in time.”
It is admitted that no notice as required by paragraph 10 of Sch. II of the Code of Civil Procedure was served on any of the parties and the order itself was not shown to the pleaders nor were their signatures obtained. Defendants Nos. 10 and 11 appeared on the 13th January, 1936 and prayed for time to file objections. Later on, they did not file any objection and the award was made final by the order of the Court passed on the 20th January, 1936 and on the basis of this award the decree was passed.
Mr. Guha who appears for the Appellants has questioned the propriety of the procedure followed by the trial Court and it is contended before us that no decree could be passed by the trial Court on the basis of the award inasmuch as there was no notice given to his clients under the provision of paragraph 10, Sch. II of the Code of Civil Procedure and the time for making an application for setting aside the award, so far as his clients are concerned, had not expired as yet. In my opinion, this contention has substance and must prevail. Paragraph 10 of Sch. II of the Code of Civil Procedure is mandatory and lays down that the notice of the filing of the award shall be given to the parties. Under Art. 158 of the Limitation Act, it is only when the award is filed and notice of the award is duly given to the parties under paragraph 10, Sch. II mentioned above, that the parties have got to make applications for setting aside, the award within 10 days from the date thereof. In this case, there was no such notice. The Defendants Nos. 6 and 7 had, in my opinion, no opportunity of making any application for setting aside the award under the provision of paragraph 15 of Sch. II of the Code of Civil Procedure.
The result is that the appeal must be allowed and the decrees passed by the Courts below will be set aside, Due notice of the award will now be served upon all the parties under the provision of paragraph 10 of Sch. II of the Code of Civil Procedure and it is only after the time given for filing an application to set aside the award expires that the Court will proceed to deal with the matter as contemplated by paragraph 16 of the Code of Civil Procedure.
Let the records be sent down to the trial Court at once and that Court should try to dispose of the matter as expeditiously as possible.
There will be no order as to costs in this appeal.
Ghose, J.:— I agree.
C.C