- (1.) DESAI, C.J.
(2.) THIS is an appeal from an order passed by a Civil Judge making an award a rule of the Court and passing a decree in terms of it. The appellant and the respondents are brothers. On 20-5-1955 they agreed to refer certain differences that had arisen amongst them to the arbitration of three persons, (1) Daya Kishan, (2) Bishambhar Dayal and (3) Moti Lal. The arbitrators started arbitration proceedings. On 14-1-56 Daya Kishan addressed a letter to the parties and the other two arbitrators alleging that the arbitration proceedings were conducted unfairly, that he being in a minority had been unable to do anything and that undue influence was being exerted upon him by the other arbitrators and informing them that he had withdrawn from the arbitration and would not take part in the arbitration proceedings. On 19-1-56 an award was made; it purported to have been made by all the three arbitrators but was signed by only two of them and contained a note to the effect that Daya Kishan, the third arbitrator, had refused to sign it. The respondents filed the award in Court of the learned Civil Judge on 7-9-1967. He ordered a notice of it to be issued to the parties and the notice was served upon the appellant on 30-9-1957. Actually the appellant refused to accept the notice. The notice is not on the record and we do not know what exactly it required the appellant to do. The learned Civil Judge fixed 16-11-57 as the date for the hearing of the case and on 5-11-1957 the appellant filed a written statement. It must be emphasised at this stage that it was styled as "objection" and was in all respects a written statement. It contained grounds of attack of the award, contained no prayer and did not seek any relief of any kind. The last words of it were: "(43) That the so-called award with respect to the matters beyond the scope of reference is inseparable from the award given on matters within the scope of reference." A written statement is exempt from payment of Court fee while an application under Section 33 of the Arbitration Act for the setting aside of an award is to bear a court-fee of Rs. 18/12, vide Article 18 (1) of Schedule II of the Court Fees Act. The document was not stamped at all and obviously it was treated as a written statement. The learned Civil Judge passed the order under appeal making the award a rule of the Court and passing a decree on its basis. He held that the award was not bad, that the appellant's objection was not maintainable because his remedy was to apply under Section 33 for the setting aside of the award, that there was nothing in the Act like objecting to an award otherwise than by applying under Section 33, that if an award is not set aside or remitted a decree must be passed in terms of it, that an application under Section 33 became time-barred after 30-10-57 and that consequently the objection filed on 5-11-1957 could not be treated as an application under Section 33.
(3.) WE have heard counsel only on the question whether the appellant could prevent the award being made a rule of the Court and a decree being passed on its terms when he did not apply under Section 33 and the limitation for applying under it had expired. If we answer this question in the negative, we must hold that the judgment of the learned Civil Judge was correct and it will not be necessary to go into other matters.;