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

2. A suit for partition was filed against, defendants 1 to 10 and 12, members of a joint family. Defendant No. 1 was father of the appellant, who was then a minor, defendant No. 12. Defendant No. 11 was an outsider, he being a partner in the partnership shop of the family. Parties other than defendant No. 11 referred the matters in difference to an arbitrator. The arbitrator filed the award in Court on February 18, 1948. On February 21, 1948, the Civil Judge adjourned the matter for parties say to the arbitrators report, to March 22, 1948. On March 16, 1948, an application was presented on behalf of defendant No. 1 praying that certain papers and documents be called for from the arbitrator. On March 22, 1948, an application was presented on behalf of defendant No. 1 pray-in for is days time for going through the papers and documents which he had asked the arbitrator to send to the Court and to intimate his say regarding the arbitrators award. The Court granted the request. Defendant No. 1 filed his say about the arbitrators report on April 2, 1948. He withdrew his contentions on March 11, 1949. It is to be noted that neither the objections filed on April 2, nor the other applications, purported to have been filed on behalf of defendant No. 12.3. On February 17, 1948, defendant No. 1 filed an application stating thereinarbitrator is to be appointed in the matter of the suit and the arbitrator is to submit an award. For the aforesaid reasons it is impossible for me to put forth properly necessary contentions etc., in the said matter. Consequently, the minor will be put to a heavy loss. In these circumstances, I have no desire to act as a guardian of the minor. Therefore, my appointment as a guardian of the mirror may be cancelled and further steps tray be taken after appointing a proper guardian of the minor. His mother Dhondavvabai may be appointed, guardian of the minor. I have put forth a contention against the arbitrators award. I may be granted time for thatresignation from guardianship was accepted on April 13, 1948, and Dhondavvabai, the mother of the minor defendant No. 12, was appointed guardian on June 16, 1948.4. On September 5, 1948, a summons purporting to be for settlement of issues, was served on her. On September 7, 1948, she applied for, and was granted, one months time for submitting the written statement with regard to the claim and the award in the said matter. On October 7, 1948, she applied for, and was granted, another one months time for the same purpose. On November 9, 1948, she filed a written statement on behalf of defendant No. 12, with regard to the suit and the award, questioning the validity of the award and praying that it be declared null and void and that the suit be heard after taking into consideration the interest of the minor.5. On August 24, 1949, the Civil Judge ordered that the award be filed, that a decree be drawn up in terms of the award and that the decree should further contain the terms as to the Bombay shop run in partnership with defendant No. 11 as was mentioned in the order. It was said in this order that none of the parties except defendant No. 1 put in any objections to the award, that defendant No. 1 filed his objections beyond the period of limitation and subsequently withdrew them and that the objections - filed by the guardian-ad-litem of defendant No. 12 on November 9, 1948, was also filed beyond the period of limitation.6. Defendant No. 12 then went up in appeal to the High Court. The High Court dismissed the appeal holding that it was incompetent as the order of the Civil Judge did not amount to an order refusing to set aside an award, as there had been no objection before him for the setting aside of the award. It further held that the issue of a formal notice under sub-sec. (2) of S. 14 intimating the filing of the award was not necessary for the commencement of the period of limitation under Art. 158 of the Limitation Act and that objections coming under S. 33 of the Arbitration Act also amounted to objections for the setting aside of the award. It is this order of the High Court whose correctness is challenged in this appeal.

Court's reasoning:
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.