(Prayer: Petition (disposed of on 20-4-1948) under S. 115 of Act V of 1908 praying the High Court to revise the decree of the Court of the District Munsif of Tanuku dated 12-7-1947 and passed in I.A. No. 536 of 1947 in O.S. No. 421 of 1946.)

The defendant has filed this application to revise the decree of the District Munsif of Tanuku which was passed on the basis of an award. After the issues in the suit were framed the matter in difference between the parties to the suit was referred to arbitration. The arbitrators were directed to file the award by 10th July 1947. An award was filed into Court on the 10th July 1947. On that day the District Munsif passed an order Award filed; objections, if any, 12-7-1947. As no objections were filed o n 12-7-1947, a decree in terms of the award was passed on that day.

In this revision petition, the main point urged on behalf of the petitioner is that the learned District Munsif acted illegally in the exercise of his jurisdiction in not giving 30 days time for filing objections to the award from the date of service of notice of the award as provided by the amended Art. 158 of the Indian Limitation Act. As the question whether the District Munsif failed to give 30 days time or whether the defendant waived his right to file objections was in controversy between the parties, I called for a report from the learned District Munsif. His report shows that after the award was filed into Court on 10th July 1947, only two days time was granted and on 12th July 1947, as no objections were filed by either party, the suit was decreed in terms of the award. There is no truth in the contention of the respondent that the defendant waived his right to file objections and that therefore the decree in terms of the award was passed. As the learned District Munsif acted illegally in the exercise of his jurisdiction in not observing the rule regarding the time for filing of objections, it is a case in which the order of the learned District Munsif should be set aside and the matter remanded for disposal according to law.

On behalf of the respondents, however, an objection was taken that the proper remedy of the defendant was to file an appeal against the decree and not a civil revision, petition under S. 115 of the Procedure Code. It is not contended by the respondents that this is a matter in which a right of appeal is provided specifically by S. 39 of the Arbitration Act, 1940. The contention urged is that against the decree an appeal lies as the decree is an illegal decree and not a decree in accordance with law, S. 17 of the Arbitration Act, 1940 says:

Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award.

This section, word for word, is a reproduction of paragraph 16 of Sch. II of the Civil Procedure Code, since repealed. Under that section it was held by the Allahabad High Court in Najmuddin Ahmed v. Albert Puech (29 All. 584) that an appeal would lie from a decree passed in accordance with an award if such decree was passed without allowing to the parties the time prescribed by law for filing objections to the award. The provision corresponding to paragraph 16 of Sch. II of the Civil Procedure Code of 1908 then in force was S. 522 of the old Code which was also similar in language, The learned Judges construed the prohibition that no appeal shall lie when the decree is passed in accordance with the award contained in that section as applicable only to a case where the decree was a legal decree and not a decree which was passed ignoring the rule prescribing the time for filing objections to the award. As the decree was not a legal decree, it was held that it was open to the parties aggrieved by the action of the Court to file an appeal. Of course, from the language of the section it seems to me clear that save in two exceptional cases namely, where the decree is in excess of or is not otherwise in accordance with the award, no appeal shall lie from any decree. The word decree there may mean a legal or an illegal decree. I see no basis in the language of either S. 17 of the Arbitration Act or the corresponding provisions under the previous Codes for any such distinction. The learned judges of the Allahabad High Court, however, relied on the decision o f the Privy Council in Maharajah Joymungul Singh Bahadoor v. Mohun Ram Marwaree (23 W.R. 429 (P.C.) in support of their conclusion. In my opinion, however, that decision does not warrant the conclusion drawn by the learned Judges of the Allahabad High Court. In that case there was a decree passed on the basis of an award, but the award was signed by the arbitrators separately and the ten days time for filing objections was not granted. All the same a decree in terms of the award was passed. The matter was taken in appeal to the High Court and the High Court remanded the matter for further consideration. With reference to the procedure adopted by the High Court, their Lordships of the Judicial Committee observed:

From that decree there was an appeal to the High Court, and the decree was set aside, and properly set aside, by the High Court, apparently on two grounds: the first was that the Judge had proceeded irregularly, in as much as he had passed his decree without allowing the parties the ten days for bringing in objections to an award which the Code of Procedure allows them.

In this passage, there was no consideration of the question whether the appeal was properly entertained in view of the language of S. 325 of the Code of 1859 where the language was that in every case in which judgment shall be given according to the award, the judgment shall be final. As early as Monji Premji Set v. Maluyakal Koyassan Koya Haji(3 Mad. 60) [LQ/MadHC/1979/30] , this Court held that where the time for filing objections was given by the Court and a decree in terms of the award was passed, no appeal lay from the decree. It was pointed out in that judgment that except in the cases mentioned in the Act, i.e., where the decree is in excess of or is not otherwise in accordance with the award, there was no appeal from the decree which was passed in terms of the award. The same view was taken by Wallis, J. (as he then was) sitting as a single Judge in the case in Velu Pillai v. Appasami Pandaram (21 M.L.J. 444). There also a decree was passed in terms of the award before the time for filing objections had expired. This Court set aside the decree under S. 115 of the Civil Procedure Code. In Sooraparaju v. Narayanaraju (1912 M.W.N. 1232), a Bench consisting of Benson, C.J., and Napier, J. considered Monji Premji Set v. Maluyakal Koyassan Koya Haji (3 Mad. 60) [LQ/MadHC/1979/30] and Najmuddin Ahmed v. Albert Puech (29 All. 584) and held that it was doubtful whether an appeal lies and interfered in revision and set aside a decree passed on the basis of an award before the expiry of the period of ten days allowed by law for filing objections. Very recently Horwill, J. also took the same view in Venkataramayya v. Papayya (1943 (2) M.L.J. 152=56 L.W. 418). It is clear therefore that from Monji Premji Set v. Maluyakal Koyassan Koya Haji (3 Mad. 60) [LQ/MadHC/1979/30] onwards, this Court has consistently taken the view that in such a case as this, an appeal does not lie and the only remedy of the aggrieved party was an application under S. 115 and it was also further held that where a decree was passed before the period fixed for filing objections had expired it was an illegal exercise of jurisdiction, I therefore overrule the objection that the civil revision petition is incompetent.

The result is that this civil revision petition is allowed, the decree of the learned District Munsif is set aside and the matter is remanded to the lower Court for disposal according to law. Costs of this civil revision petition will follow and abide the result.