' MAMOON KAZI, J.---The appellant has called in question the order passed by a learned Single Judge of this Court, dated 9-10-1991, dismissing the objections filed on behalf of the appellant under section 47 of the C.P. Code.
2. Before the learned Single Judge, contentions raised on behalf of the appellant were firstly that the decree, sought to be executed before the learned Single Judge had been obtained by fraud and misrepresentation and the same was without jurisdiction and secondly, that the matter was time-barred when the award was made rule of the Court by the learned Single Judge of this Court vide order, dated 10-11-1980, and lastly, that the Arbitrator"(who gave two awards) while giving the second award had already become functus officio and consequently the award could not be made rule of the Court by the learned Single Judge.
3. All the objections were overruled by the learned Single Judge. As to the first objection, it was held by him that section 12(2) of the C.P.Code provided for a special remedy before the same Court which had passed the original decree and, therefore, the remedy can be sought only in the manner provided by the said section. The second and the third objections raised on behalf of the appellant also did not find favour as the learned Judge found that the award has been validly made by the Arbitrator and the application for execution before him had also been filed within time as provided by Article 183 of the Limitation Act.
4. We have heard Mr. SA. Samad Khan, learned counsel for the appellant and Mr. Abbas Ahmed, learned counsel for the respondent.
5. So far as the first contention of Mr. SA. Samad Khan, viz. that the judgment and the decree had been obtained by fraud and misrepresentation is concerned, we cannot but agree with the findings of the learned Single Judge that section 12(2) provides a special remedy for a party, challenging the validity of a judgment, decree or order on the plea of fraud or misrepresentation or for want of jurisdiction. Such remedy, according to the said section, would be by making an application to the Court which passed the final judgment, decree or order and, therefore, it was rightly held by the learned Single Judge that the objection raised on behalf of the appellant in this regard was misconceived. We, therefore, find no force in the first contention of Mr. S.A. Samad Khan, in fact, the learned counsel himself did not press this ground, seriously before us.
6. Turning to the second and the third contention of Mr. SA. Samad Khan, we find it necessary to refer in a nutshell to the background of the case out of which the proceedings arose. An agreement was executed between the appellant and the respondent for transfer of a hospital known as K.V.S.I.T.E. Hospital. Clause (II) of the agreement provided for arbitration in respect of a dispute arising out of any matter in respect of the transfer of the said hospital by the appellant to the respondent and such dispute, according to the said clause, was to be referred to the "Minister for Labour Social Welfare and Auqaf, Government of Sindh" and his decision in the matter was to be treated as final. Thereafter, a dispute arose between the parties which was referred to the said Arbitrator and he gave an award dated 25-2-1977. Thereafter, an application purporting to be under section 14 of the Arbitration Act, 1940 was filed which was registered and numbered as J.
Miscellaneous No,30 of 1978, and was disposed of by a learned Single Judge of this Court, as is evident from the copy of his order, dated 24-1-1979, which has been filed by the appellant alongwith the present appeal. This order shows that the said application had been filed beyond a period of ninety days as provided by Article 178 of the Limitation Act, and consequently, the same was dismissed as time-barred. Thereafter, in 1980, another application was filed on behalf of the Arbitrator which was registered as Suit No,448 of 1980. It is pertinent to point out that when the application (J. Misc. No,30 of 1978), was placed before the learned Single Judge of this Court it transpired that the award dated 25-2-1977, had not been written by the Arbitrator on a stamp paper and consequently when Suit No,448 of 1980, was filed the said award verbatim was written by the Arbitrator on a stamp paper and signed him on 4-5-1980. Both the learned counsel appearing for the parties inform us that this award was made rule of the Court by order dated 4-9- 1982, although, a copy of such order has not been placed before us alongwith the present appeal.
Be that as it may, an appeal was filed against this order and the objection raised before the Division Bench of this Court, in the appeal was that Mr. Abdullah Baloch, who was appointed an Arbitrator in the matter by designation was no longer a Minister holding such portfolios and therefore, the award given by him was not capable of implementation. This appeal was allowed and the case was remanded to the learned Single Judge to decide the objection on the basis of the record available before him. Thereafter, it appears, that on 10-11-1980, when the matter once again came up before the learned Single Judge, only the counsel for the respondent was present who did not raise any objection and since no objections had also been filed on behalf of the appellant, the award was made rule of the Court.
7. Turning to the contention of Mr. S.A. Samad Khan, the contention is that Mr. Abdullah Baloch, after. giving the first award on 25-2-1977 had become functus officio and, therefore, he could not give the second award dated 4-5-1980, which was subsequently made the rule of the Court. We are unable to agree with Mr. S.A. Samad Khan, in this regard, since, as has been pointed out earlier, it was the same award which had been earlier given by the Arbitrator on 25-2-1977 which had been copied on a stamp paper verbatim and subsequently signed by the Arbitrator on 4-5-1980. There is no controversy at all in this regard. A somewhat similar objection was raised before the Lahore High Court in the case of Muhammad Shafi v. Muhammad Sabir PLD 1960 (W.P.) Lah. 591 and it was observed as follows:--- "The arbitrator decided the dispute finally on 22nd. of August, 1955. The draft award was written on that day which was copied down in verbatim on the stamp paper on the 11th November, 1955. After the Arbitrator decided the dispute between the parties he was incapable of giving a fresh decision upon such dispute, but he cannot be said to have ceased to be arbitrator for the purpose of writing the draft award on a stamped paper and having it registered. The arbitrator retains his position as an arbitrator until the award is filed in Court and is made a rule of law. The objections that the arbitrator had become functus officio on the day when the draft of award was written is on the face of it unacceptable."
' We find that the situation obtaining in the present case is not materially different from that in the reported case. We, therefore, cannot agree with the contention of Mr.S.A. Samad Khan, that the arbitrator had become functus officio. It would be erroneous to assume that the award filed before the Court by Suit No,448 of 1980, was a different award than the one which was earlier filed vide J.
Misc. No,30 of 1978. Such being the case, the second contention of Mr.S.A. Samad Khan is also devoid of any force.
8. Turning to the third contention of Mr. S.A. Samad Khan, the learned counsel has contended in the alternative that if the two awards given by the Arbitrator, dated 25-2-1977 and 4-5-1988 are the same, then the period of limitation should have been reckoned from the earlier date. The learned counsel although has candidly conceded that the period of limitation provided by Article 178 of the Limitation Act would be applicable only in a case where an application has been filed by a party and the said Article would not be applicable when an application has been filed by the Arbitrator, but while relying upon the observations made in the case of Muhammad Shall PLD 1960 (W.P.) Lah.
591 the learned counsel has argued that the application which was filed in Suit No,448 of 1980, should have been governed by Article 181 of the Limitation Act, which is the residuary Article, and when the said suit was filed the period of three years referred to in the said Article had already expired, if such period is to be computed from 25-2-1977 when the award was originally given. In the case of Muhammad Shall the learned Judge of the Lahore High Court while referring to Article 178 of the Limitation Act and section 14 of the Arbitration Act has observed as follows:--- " No limitation has been provided by the Limitation Act for any party to the arbitration agreement to request the arbitrator or the Umpire to cause the award to be filed in Court nor is there any limitation prescribed in the Limitation Act for the arbitrators or Umpires to cause the Award to be filed in Court upon such request. If a party to the arbitration agreement does not make a request to the arbitrator or umpire for filing the award in Court, it can directly come to the Court and request it to order the arbitrator or the umpire to file the award or a signed copy thereof in Court. Such an application will be governed by Article 178 of the Limitation Act if notice of the award has been given to the applicant, as provided by subsection (1) of section 14. But if no notice is given, then the only Article which would be attracted would be the residuary Article 181 of the Limitation Act, which provides a period of three years from the date when the right to apply accrues. The right to apply accrues to a party immediately when an award is made and he receives the knowledge thereof.
Some High Courts have taken the view that if no notice is given to a party to the agreement of making the award then an application by such a party would be considered to have been made under section 17. I do not feel quite sure if such a view is correct. In my opinion whether a notice is given, or not, an application by a party to the Court to direct the Arbitrator or the Umpire to file the award will be covered by subsection (2) of section 14."
' In our view, the contention put forth by Mr.S.A. Samad Khan is not correct because neither Article 178 nor Article 181 of the Limitation Act would be applicable in the present case. The situation envisaged in the case of Muhammad Shall was that when no notice is given by the Arbitrator in respect of the award, then Article 181 of the Limitation Act would be applicable to the parties. It was further observed that the right to apply would accrue to the party immediately when the award is made and it receives knowledge thereof. However, in our view, no period of limitation would be applicable in a case where the award is filed in the Court by the Arbitrator himself because the Arbitrator does not seek relief against any party and the language used in the Schedule to the Limitation Act clearly suggest that the period of limitation prescribed therein would be applicable only when an application has been made by a party. It is pertinent to note that the Arbitrator is not even required to make an application in this regard before the Court (see Province of East Pakistan v. Abdul Halim Nezamuddin PLD 1968 Dacca 937). In the present case, as is clearly evident from a copy of the application dated 3-5-1980, filed in Suit No,448 of 1980, the award was filed by the Arbitrator himself. This is clearly evident from the endorsement made on the said application which shows that the application had been presented before the Court on 14-5-1980 on behalf of the Arbitrator by Mr. Abbas Ahmed, Advocate. No doubt, the first application which was filed under section 14 of the Arbitration Act, by the respondent, was dismissed vide order, dated 24-1-1979, as is evident from a copy of the said order, however, nothing prevented the arbitrator from subsequently filing the same award in the Court vide Suit No,448 of 1980, since, as we have already pointed out that, no period of limitation was applicable when the award was filed in the Court by the Arbitrator himself. Consequently, the contention of Mr. S.A. Samad Khan that the application before the learned Single Judge was barred by time is not tenable. The third contention of Mr. SA. Samad Khan, therefore, must also fail.
9. In the result, we find no force in this appeal and the same is dismissed. The parties are left to bear their own costs.