GOVT OF A P Vs. Y V SUBBA RAO
LAWS(APH)-1992-11-36
HIGH COURT OF ANDHRA PRADESH
Decided on November 16,1992

GOVT OF A.P Appellant
VERSUS
Y.V.SUBBA RAO Respondents


Referred Judgements :-

CENTRAL WARE HOUSING VS. K. VENKATESWARA RAO [REFERRED TO]
NILKANTHA SIDRAMAPPA NINGASHETTI VS. KASHINATH SOMANNA NINGASHETTI [REFERRED TO]


JUDGEMENT

Syed Shah Mohd.Quadri, J. - (1.)THIS C.M.A. is directed against the order of the learned IV Additional Judge, City Civil Court, Hyderabad dated 20-4-1983 in O.S. No. 1135 of 1982 making the award dt. 11-8-1982, filed into the court on 20-11-1982 passed by the Arbi- trators (defendants 2 to 4), Rule of the Court.
(2.)SRI Ramanujam, the learned counsel for the respondent (plaintiff in the suit) raised a preliminary objection with regard to the maintainability of this appeal under Section 39 of the Arbitration Act. The learned counsel contends that as no application was filed by the appellant (defendant No. 1 in the suit) before the trial court to set aside the Award, the order under appeal cannot be treated as an order refusing to set aside the award and there is no other provision in the Arbitration Act under which an appeal can be filed against the order in question and as such, the appeal cannot be maintained. The learned Government pleader for the appellant, on the other hand, contends that as the appellant did not receive summons in the suit and that thought the Assistant Government pleader appeared for the appellant before the trial court, he did not inform the appellant about the suit and filing of the award by the Arbitrators in the Court, thus, the judgment and decree were obtained by playing fraud, the appeal may be treated as revision under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution of India and the order and decree under appeal may be set aside.
To examine the validity of the preliminary objection, it will be useful to refer to Section 39 of the Arbitration Act which reads as follows :

"39. Appealable orders :-(1) An appeal shall lie from the following orders passed under this Act (and from no others) to the court authorised by law to hear appeals from original decrees of the court passing the order. An order -

(1) superseding an arbitration, (ii) on an award stated in the form of a special case, (iii) modifying or correcting an award, (iv) filing or refusing to file an arbitration agreement, (v) staying or refusing to stay legal proceedings where there is an arbitration agreement, (vi) setting aside or refusing to set aside an award, Provided that the provisions of this Section shall not apply to any order passed by a Small Causes Court.

(2) No second appeal shall lie from an order passed in appeal under this section but nothing in this section shall affect or take away any right to appeal to the Court."

(3.)AN appeal is provided against orders enumerated in sub-section (1) and against no other order passed under the Act. The order is sought to be categorised under clause (vi) - setting aside or refusing to set aside the award. It is evident that before challenging the order under this clause, there must be a request to the court to set aside the award filed in the court under Section 14 (2) of the Act.
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