1. ' KHILJI ARIF HUSSAIN, J.--- Being aggrieved and dissatisfied by the order, dated 23-4-1995 in Suit No,565/83, dismissing an application under section 152, C.P.C., filed by the appellant for correction of mistake in judgment and decree, dated 18-4-1984 by allowing the refund of retention money amounting to Rs,5,64,523.69, the appellant has preferred this High Court Appeal.
2. ' Brief facts for the purpose of deciding the appeal are that on 22-2-1976, the respondent filed quotation for design-cumconstruction of two administrative blocks at the rate of Rs,86 per square foot and entered into an agreement on 8-7-1976. In terms of the agreement, the appellant can retain 10% of the contract sum out of the running bills as retention money, 50% of which was to be released along with final bill and 50% on the issuance of maintenance certificate of the Corporation. On account of some dispute on payment of final bills matter was referred to sole Arbitrator Mr. Justice (Retd.) Abdul Hafeez Memon. The learned Arbitrator by a well-reasoned award, after discussing various documents and evidence on record, gave award and allowed a sum of Rs,14,05,941, which includes a sum of Rs,5,64,523.69, being the retention money. The award was made rule of the Court and decree was passed in terms of the award. The appellant filed objection to award under sections 15, 16, 30 and 33 of the Arbitration Act, which apparently were not accepted and award was made rule of the Court, followed by a decree. After making award rule of the Court on 18-4-1984, the appellant filed an application under section 152 read with section 151, C.P.C. Praying that judgment and decree dated 18-4-1984 may be corrected by allowing the refund of retention money amounting to Rs,5,64,523.69 to the appellant. After hearing the learned counsel for the parties, the Honourable Justice Saeed-uz-Zaman Siddiqui (as he then was), dismissed the application. Aggrieved by the order, dated 8-2-1987, dismissing the application under section 152, C.P.C., the appellant filed High Court Appeal No,55 of 1987. A learned Division Bench of this Court after hearing the arguments remanded the matter to learned Single Judge to rehear the application and the parties shall be entitled to refer the arbitration record. After remand of the matter, application under section 152, C.P.C. Was heard by the learned Single Judge, who again dismissed the same vide his order dated 3-4-1985.
3. ' Heard Mr. M.G. Dastgir, learned counsel for the appellant, and Mr. Ghulam Hussain, Advocate, holding brief for Mr. Balal A. Khawaja, learned counsel for the respondent.
4. ' Mr. M.G. Dastgir, learned counsel for the appellant, argued that the final bill, submitted by the respondent, included retention amount and after holding that the respondent is entitled only for a sum of Rs,58,37,274. The learned Arbitrator committed error of facts by directing to pay a sum of Rs,5,64,523.69, being the retention money lying with the appellant as the said amount was already included in the final bill.
5. ' We have taken into consideration arguments advanced by the learned counsel for the appellant and learned counsel for the respondent and perused the record.
6. ' From the record it appears that the respondent submitted final bill of Rs,62,26,288.02 as follows:-
(i) Work done under the contract (BOQ) Rs,53,66,400
(ii) Extra civil work Rs,6,37,720
(iii) Extra electric work Rs,2,22,167.02 Total Rs,62,26,287.02 ' The appellant, however, approved payment of Rs,47,07,586.62 only on account of the work done under the contract (BOQ) and disallowed amount of Rs,6,58,813.38. The learned Arbitrator after discussing in detail whether the amount was rightly deducted from the account of the respondent, gave findings that the respondent was entitled to payment of gross amount of Rs,58,37,274.25. After deducting the amount of Rs,51,81,473.53, the learned Arbitrator recorded following findings:--- "Thus, the total net amount finally due and payable to the plaintiffs on the final bill comes to Rs,6,55,800.72 (Rs,58,37,274.25 - Rs,51,81,473.53 equal to Rs,6,55,800.72), say Rs,6,55,800. In addition to this, plaintiffs have claimed the amount of Rs,48,487.50 for the return of the steel which is admitted by the defendants. Plaintiffs have further claimed Rs,5,64,523.69 as their retention money lying with the defendants which also is not disputed by the defendants. Accordingly, the plaintiffs are entitled to the payment of Rs,12,68,811.19, say, Rs,12,68,811 (Rupees twelve lacs sixty-eight thousand eight hundred and eleven only), against the final bill for the work done under the contract (BOO) and the extra work done in construction of Administrative Blocks 1 and 2 for the defendants."
7. ' After filing of award in Court, the party to award, if wants to file objection to it, can do so within 30 days from the date of notice/knowledge of filing of award.
8. ' When award comes before the Court for making a rule of the Court, the Court can:---
(i) In exercise of powers under section 15 of the Arbitration Act modify or correct an award if a part of the award is upon a matter not referred and can be separated or containing any obvious error, which can be amended without affecting such decision or contains a clerical mistake or an error arising from an accidental slip or omission.
(ii) Remit the award to Arbitrator or umpire for reconsideration upon such terms as it thinks fit.
(iii) In exercise of power under section 17 of Arbitration Act, Court to see that there was no-cause to remit award or to set aside the award even if no application to set aside the award is filed or an application to set aside the award is refused, proceed to pronounce the judgment according to the award.
(iv) In exercise of power under section 26(A), for want of reasons for award insufficient, remit the award to the arbitration or umpire to give reasons in sufficient details within time fixed by the Court.
(v) After hearing objections filed under sections 30 and 33 of.
9. ' Arbitration Act, if any, set aside the award if Arbitrator or umpire has misconducted.
10. ' Once the Court has pronounced the judgment according to award making the award rule of the Court after hearing the objections filed under sections 30 and 33 of the Arbitration Act, or even if objections are not filed in exercise of power under section 17 of the Arbitration Act, not to set aside the award but make it rule of the Court, any clerical error or accidental slip in the award after the objection to reject award cannot reopen by involving section 152, C.P.C. Section 152, C.P.C. Required clerical or arithmetical mistakes in judgments, decrees or order by any accidental slip or omission, whereas award given by an Arbitrator is neither judgment, decree or order of Court, except that Court pronounced the judgment according to award.
11. ' Learned counsel for the appellant in support of his contention relied upon the case of Muhammad Mumtaz Ali Khan v. Syed Muhammad Saadat Ali Khan AIR 1933 Oudh 293, and judgment passed in High Court Appeal No,55 of 1987 in this matter, by which matter was remanded to the learned Single Judge to rehear the application.
12. ' As regards the case of Muhammad Mumtaz (supra), the order of Oudh Court is based upon the Arbitration Act, 1899 and not upon Arbitration Act, 1940 and there is substantial difference between- paragraph 16 and section 15(1) of the Indian Arbitration Act, 1899 and section 17 of the Arbitration Act, 1940. The principle laid down in the said matter is not applicable to the facts of this matter.
13. ' In the case of Lakshmi Narayanappa v. Batchyya AIR 1927 Madh. 70, it was held that when a decree had been passed in accordance with the award, an arithmetical mistake contained in documents on which the award was based could not be corrected by the Court on an application under section 152, C.P.C., but the remedy of the aggrieved party was by appeal.
14. ' As regards the order/judgment passed in High Court Appeal No,55 of 1987, the learned Judges while remanding the matter for rehearing, relied upon the case of Muhammad Mumtaz (supra), has not specifically dealt with the question whether an application under section 152, C.P.C. Is maintainable after dismissal of objection and making award rule of the Court.
15. ' Unlike award the contents of judgment/decree are not in the knowledge of the party to the proceedings till it was pronounced by the Court. The law-makers instead of undergoing a cumbersome an expensive process of appeal on the maxim that no one should be injured by an act of the Court provided remedy to correct clerical and arithmetical mistake in the judgment and decree by filing an application under section 152, C.P.C. As against this the contents of award were in the knowledge of party, who filed objections to it, if not taken such objection at the initial stage or if taken, Court rejected the same by making award rule of the Court cannot invoke section 152, C.P.C. For reopening of award after it was made rule of the Court to defeat the very objection of arbitration to get the dispute resolved by a forum of their choice within reasonable period of time without undergoing technical procedure of law.
16. ' The appellant filed objections under section 152, C.P.C. And after objections filed by the appellant were rejected and making award rule of the Court on 18-4-1984 cannot reopen by making correction in the findings recorded by the learned Arbitrator, which according to the appellant, is not in accordance with the record before the learned Arbitrator.
17. ' We have gone through the award as well as material available on record, from which it appears that the findings of the learned sole Arbitrator for payment of retention money was in accordance with the material before the learned Arbitrator. The learned Arbitrator in his award gave findings that the appellant has not disputed that the respondent is entitled to claim Rs,5,64,523.69 as their retention money. The appellant filed objections to award under sections 15, 16, 30 and 33 of the Arbitration Act and after taking into consideration objections filed by the appellant award was made rule of the Court. Instead of filing an appeal against the said order, the appellant has filed an application under section 152, C.P.C. For correction of findings recorded by the learned sole Arbitrator after taking into consideration all aspects of the matter and material available before him was filed. Such findings recorded by the learned sole Arbitrator, which was made rule of the Court after taking into consideration objections raised by the appellant, cannot be reopened in exercise of powers under section 152, C.P.C. And accordingly listed appeal has no merits and is dismissed.