Case: Nilkantha Shidramappa Ningashetti Vs. Kashinath Somanna Ningashetti And Others

the party whom the pleader represents and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person.9. We have been referred to S. 42 of the Arbitration Act for the modes of serving notice. This section does not apply to the giving of notice by Courts. It applies to the service of notice by a party to an arbitration agreement or by an arbitrator or umpire. It is contended that verbal communication of the filing of the award does not amount to serving of a notice. The expression date of service of notice is used in Art. 158, First Schedule of the Limitation Act because sub-s. (2) of S. 14 would be applicable both when the reference to arbitration is out of Court or in a suit. "When the arbitration reference is out of Court, no party is expected to be present in Court and, therefore, the notice will have to go to the party formally, i.e., a written notice will issue from the Court to the parties concerned, intimating them that an award had been filed. It is only in cases where an arbitration is through Court that, when the award is filed, the Court can have the counsel for the parties present at the time the case is put up with the award and that the Court can then orally intimate to the counsel about the filing of the award. Further, service, according to Websters New International Dictionary, II Edition, Unabridged, means act of bringing to notice, either actually or constructively, in such manner as is prescribed by law. Oral communication will therefore amount to service too, when no particular mode of service is prescribed.10. We see no ground to construe the expression date of service of notice in col3 of Art. 158 of the Limitation Act to mean only a notice in writing served in a formal manner. When the Legislature used the word notice it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. If its intention were to exclude the latter sense of the words notice and service it would have said so explicitly. It has not done so here. Moreover, to construe the expression as meaning only a written notice served formally on the party to be affected, will leave the door open to that party, even though with full knowledge of the filing of the award he has taken part in the subsequent proceedings, to challenge the decree based upon the award at any time upon the ground that for want of a proper notice his right to object to the filing of the award had not even accrued. Such a result would stultify the whole object which underlies the process of arbitration - the speedy decision of a dispute by a tribunal chosen by the parties.11. In this case, the parties knew of the filing of the award, Defendant no. 1 had probably known of the imminence of the filing of the award when he stated, in his application dated February 17, 1948, that he intended to file an objection to the award. He was then the guardian of the appellant. He continued to be the guardian till April 1948. The appellants mother became guardian in June 1948. It has to be presumed that she would have known of the filing of the award on that day. Any way, she knew definitely on September 7, 1948, that an award had been filed and that she had to file an objection. She took one months time on September 7, for filing the objection and again, one months time, on October 7. She actually filed the objection on November 9. If she be held to have notice of the filing of the award on September 7, 1948, even then the filing the award on November 9, 1948, was beyond the period of thirty days prescribed in Art. 158 of the Limitation Act. We therefore see no justification for the contention that the period of limitation had not begun to run against the appellant and that the objection filed on his behalf on November 9, 1948, was within the period of limitation prescribed under Art. 158 of the First Schedule to the Limitation Act.12. We therefore agree with the High Court that the intimation to the pleaders of the parties on February 21, 1948, amounted to service of the notice on the parties about the filing of the award and that the objection filed on behalf of the appellant was filed after the expiry of the period of limitation.13. The second question is whether the order of the Civil Judge amounted to an order refusing to set aside the award and therefore appealable to the High Court. The High Court held that it was not such an order and we agree. When no party filed an objection praying for the setting aside of the award, no question of refusing to set it aside can arise and therefore no appeal was maintainable under S. 39(1)(vi) of the Arbitration Act which allows an appeal against an order refusing to set aside an award.14. Lastly, it was submitted that the objection to the effect that the award was illegal and without jurisdiction, inasmuch as the arbitrator included in the award property which did not fall within the scope of his authority, should have been considered by the trial Court. Such an objection was not pressed before the trial Court and therefore the High Court did not allow that objection to be taken before it. We think that the High Court was right in not allowing the objection to be raised since it, being not pressed in the trial Court, will be presumed to have been given up.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We are of opinion that the expression give notice in sub-s. (2) of S. 14, simply means giving intimation of the filing of the award, which certainly was given to the parties through their pleaders on February 21, 1948. Notice to the pleader is notice to the party, in view of R. 5 of O. III, Civil Procedure Code, which provides that, any process served on the pleader of any party shall be presumed to be duly communicated and made known to the party whom the pleader represents and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party insection does not apply to the giving of notice by Courts. It applies to the service of notice by a party to an arbitration agreement or by an arbitrator or umpire.We see no ground to construe the expression date of service of notice in col3 of Art. 158 of the Limitation Act to mean only a notice in writing served in a formal manner. When the Legislature used the word notice it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. If its intention were to exclude the latter sense of the words notice and service it would have said so explicitly. It has not done so here. Moreover, to construe the expression as meaning only a written notice served formally on the party to be affected, will leave the door open to that party, even though with full knowledge of the filing of the award he has taken part in the subsequent proceedings, to challenge the decree based upon the award at any time upon the ground that for want of a proper notice his right to object to the filing of the award had not even accrued. Such a result would stultify the whole object which underlies the process of arbitration - the speedy decision of a dispute by a tribunal chosen by the parties.11. In this case, the parties knew of the filing of the award, Defendant no. 1 had probably known of the imminence of the filing of the award when he stated, in his application dated February 17, 1948, that he intended to file an objection to the award. He was then the guardian of the appellant. He continued to be the guardian till April 1948. The appellants mother became guardian in June 1948. It has to be presumed that she would have known of the filing of the award on that day. Any way, she knew definitely on September 7, 1948, that an award had been filed and that she had to file an objection. She took one months time on September 7, for filing the objection and again, one months time, on October 7. She actually filed the objection on November 9. If she be held to have notice of the filing of the award on September 7, 1948, even then the filing the award on November 9, 1948, was beyond the period of thirty days prescribed in Art. 158 of the Limitation Act. We therefore see no justification for the contention that the period of limitation had not begun to run against the appellant and that the objection filed on his behalf on November 9, 1948, was within the period of limitation prescribed under Art. 158 of the First Schedule to the Limitation Act.12. We therefore agree with the High Court that the intimation to the pleaders of the parties on February 21, 1948, amounted to service of the notice on the parties about the filing of the award and that the objection filed on behalf of the appellant was filed after the expiry of the period ofHigh Court held that it was not such an order and we agree. When no party filed an objection praying for the setting aside of the award, no question of refusing to set it aside can arise and therefore no appeal was maintainable under S. 39(1)(vi) of the Arbitration Act which allows an appeal against an order refusing to set aside anan objection was not pressed before the trial Court and therefore the High Court did not allow that objection to be taken before it. We think that the High Court was right in not allowing the objection to be raised since it, being not pressed in the trial Court, will be presumed to have been given up.