Mallick, J. - (1.) THIS is an application for judgment upon award. The award was made on 7-7-1958, and the Insurance Company was directed to pay to the claimants the sum of Rs. 1 Lac being the amount of the claim and Rs. 10,000/- on account of costs. The claim was very much contested in the arbitration proceedings and was argued by very eminent counsel. The costs incurred by the parties in consequence were heavy. The company made an application for setting aside the award. The application was heard by me. After a very spirited fight the company lost the application and by my judgment dated 22-12-1958, I dismissed the application. The judgment on Award matter was on the list and I would have passed judgment on the award hut for the objection taken by the company that the claimant had not yet obtained Succession Certificate. The matter was thereupon adjourned to enable the claimants to obtain Succession Certificate. Such a Succession Certificate has now been obtained and filed in Court and the matter has now come for final disposal.
(2.) MR. Bhabra appearing for the company has submitted that no judgment should be passed now in view of the fact that my judgment refusing to set aside the award is now under appeal. He has submitted that by reason of the appeal being filed against the order refusing to set aside the award, this court has lost jurisdiction to pass a judgment till the appeal is finally disposed of. He has further submitted that even if I have jurisdiction, I should not pass a judgment in the circumstances of this case. A third question was also raised that the Succession Certificate was only in respect to the claim and does not cover costs. This last point, however, was expressly abandoned by MR. Bhabra. Taking the first point first, Mr. Bhabra's argument is that the court under Section 17 is empowered and directed to "proceed to pronounce judgment on award" after the application to set aside the award is refused. The application to set aside the award has no doubt been refused by this court. But the matter is now under appeal and the Appeal Court may set aside the award. It cannot therefore be said, before the disposal of the appeal, that the application for setting aside the award has been finally refused. It must be held that the application to set aside the award is still pending though in appeal and so long long as it is pending the Court is not entitled to proceed to pronounce judgment according to the award. He has cited several decisions in support of his contention that an appeal is a continuation of the suit and the judgment and the decree of the Appeal Court is final and not the judgment and order of the trial court. The cases cited by Mr. Bhabra are: Kristnamachariar v. Mangammal, ILR 26 Mad 91 (FB); Gurraju v. Venkateswar Rao, AIR 1917 Mad 597; Gobind Chunder Roy v. Guruchurn Kurmokar, ILR 15 Cal 94; Nilvaru v. Nilvaru, ILR 6 Bom 110; Balkissen v. Kishanlal, ILR 11 All 148; Sheosagar Singh v. Sitaram Singh, 24 Ind App 50 (PC); Setta Goundan v. Muthai Goundan, ILR 31 Mad 268; Dinonath Ghosh v. Shyama Bibi, ILR 28 Cal 23; Rasul Shah v. Diwanchand, AIR 1936 Lah 583, Samed Sheikh v. Naba Nepal, AIR 1914 Cal 614, Subramannaya Bhatta v. Devadas Nayak, (S).
(3.) THESE are all cases in which the Court held that a judgment will not operate as res judicata when the decision is under appeal, that the suit continues for the purpose of applying the doctrine of lis pendens till the appeal is finally disposed of and that for applying certain Articles of Limitation Act, the date of disposal of the appeal and not the date of the judgment of the trial court is to be taken into account. It is settled law that for the above purposes, the decree or order of the trial court must not be taken to be final adjudication of the rights of the parties, so as to apply the doctrine of res judicata, lis pendens and/or for applying certain articles of the Limitation Act. This principle however has hardly any application in the construction of Section 17 of the Arbitration Act which lays down the law as to the manner in which an award in arbitration proceedings is to be made a rule of the court. The scheme of the Act is that after the award is made it has to be filed in court. When it is filed in court, the court dealing with the award is given power to remit or to set it aside and when it sees no reason to remit or to set it aside, it is directed to proceed to pass judgment on award. All these things under the Act are to be done by the court dealing with the award. The court is either to remit or set aside the award and in case when the court finds no reason to do either to pass a judgment in terms of the award. The court is not called upon, in my judgment, under the Act, to wait and find out whether its order refusing to remit or to set aside the award has become final and unassailable in the sense that the time for appeal is gone or that the appeal if taken is dismissed in order to assume jurisdiction to proceed to pronounce judgment in accordance with the award. The court dealing with the award is not required to look beyond itself and proceed to deal with the matter on the footing that so far as it is concerned there is an order or refusal irrespective of the fact that an appeal might be taken or has been taken against the order or that the order passed by the court might be set aside.;