- (1.) THIS appeal is directed against the order of the Subordinate Judge Ist Class, Chandigarh, dated 28-4-1987 whereby he allowed the petition filed under Ss.14(2) and 17 of the Arbitration Act, 1940, by respondent No. 1. He made the award the rule of the Court and passed a decree in terms of the same.
(2.) THE facts briefly are that a dispute arose between respondent No. 1 and the appellants in respect of Contract Agreement C E J K 37/76-77, for providing married accommodation for JCOs/HAVs/ORs at Udhampur. In terms of the agreement the dispute was referred for adjudication to the sole arbitrator Lt. Col. K.B. Sethi. THE arbitrator gave the award and sent a copy of the same to respondent No. 1. Respondent No. 1 moved the petition before the Subordinate Judge, Chandigarh for a direction to the arbitrator to file the award in the Court and after the award is filed the same may be made the rule of the Court and a decree in terms thereof may be passed. The appellants filed reply to the application. They did not dispute the correctness of the allegations made in the petition. The only dispute raised was that since the work under the contract was executed at Udhampur the Subordinate Judge at Chandigarh had no jurisdiction to entertain the application. The learned Subordinate Judge from the pleadings of the parties framed the following issues : - 1. Whether this court has jurisdiction to try this petition? OPA 2. If issue No. 1 is decided in favour of the petitioner, whether the award dated 21-8-1985, can be made rule of the court? OPA 3. Relief : Under issue No.1 it was held that the Civil Court at Chandigarh had jurisdiction to entertain the application. Under issue No. 2, it was found that objections were not filed to the award and there was no legal impediment for making it a rule of the Court.
(3.) THE appellants have come up in appeal and have raised only one objection that the Civil Court at Chandigarh had no jurisdiction to entertain the petition giving rise to this appeal. The learned counsel for the respondents has raised a preliminary objection relating to the maintainability of the appeal.' He submitted that under S.14 of the Arbitration Act 1940 (for short referred to as the Act) the arbitrator has to file the award in Court when directed and when the award is filed the Court has to give notice to the parties of the filing of the award. After the provisions of S.14 of the Act have been complied with and the 'Court finds no cause' to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court after the time for making an application to set aside the award has expired shall pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow. Section 17 of the Act further postulates that 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. The order under challenge reveals that the learned Subordinate Judge has made the award the rule of the Court and passed a decree in terms of the award. The appeal could only lie if the decree was not in accordance with the award. The learned counsel submits that in view of the mandatory provision of the award the appeal is not competent. There is a substance in the plea raised. Section 39 of the Act provides that all orders of the nature specified in the section will be open to appeal irrespective of the fact whether they are final orders in the case and dispose it of finally, or are merely interlocutory. Against an order under S.17 of the Act passing a decree in terms of the award no appeal lies under S.39 of the Act but it lies under the last part of S.17 on only two grounds viz. - (i) that the decree is in excess of the award; and (ii) that the decree is not in conformity with the award. In the instant case, I do not find that the learned Subordinate Judge has not passed the decree in conformity with the award or that it is an excess of the award. Clauses A to C of S. 30 of the Act set out the grounds on which an award could be set aside; and S.33 further adds that the challenge could be also with reference to the existence of the validity of an arbitration agreement or an award. If no steps are taken to set aside the award under Ss.30 and 33 of the Act in unassailable reason must follow under S.17 of the Act and a decree is not open to challenge except by way of an appeal under the two grounds mentioned in the said section; Whatever may be the ground of impeachment it has got to be agitated under Ss.30 and 33 of the Act and if there is an omission to do so one cannot avoid the bar created by S.17 of the Act. Resultantly, I hold that the appeal is not competent.;