NOORUL ARMN, J.-----This appeal raises an important question of law under the Arbitration Act, 1940, namely, whether an application can be made to Court for setting aside an award or adjudging it a nullity, without, however, the award having been filed in Court. The background of the dispute is an agreement entered into between the appellants and the former State of Khairpur for the construction of a power house at Cambat. There was dispute as to whether the appellants had fulfilled their obligations under the agreement. The appellants referred the dispute to the sole arbitration of Sardar Muhammad Aslam Khan, the respondent No. 2 herein, who gave his award but did not file it in Court under the provisions of the Arbitration Act. Nor did the appellants take any proceedings to have the award filed in Court by the arbitrator. The Government of West Pakistan, the successor-in-interest of the Khairpur State, therefore, made an application to the District Court at Khairpur under sections 30 and 33 of the Arbitration Act, 1940 to contest this award. The District Judge, however, held, on the basis of several Indian decisions, that such an application was not maintainable unless and until the award is filed in Court under the Arbitration Act, 1940. This judgment was set aside by a learned Single Judge of this Court, from whose decision the present letters patent appeal has come before us.
2. A preliminary question was raised as to whether an award, which is not filed in Court, and consequently is not made rule of the Court, can cause prejudice to any party thereto. One view is that such an award remains ineffective, so that the Government's application under sections 30 and 33 of the Arbitration Act would be premature. But in some decisions a contrary view has been taken. The learned Government counsel argued that in view of this judicial conflict, it would be safer to assume that under certain circumstances an award, though not made rule of the Court, could still cause prejudice to either party thereto. Reference in this connection was made to a Sind decision, namely, Lutufallah and others v. Muhammad Sidik Sobho Bhati and others (AIR 1946 Sind 117), in which it was held that a valid award operates to merge and extinguish all claims embraced in the submission, and after it has been made, the submission and award furnish the only basis by which the rights of the parties can be determined, and constitute a bar to any action on the original demand. 7 he High Court of Calcutta as held in Pushraj Puranmal v. Clive Mills Co. Ltd. (AIR 1960 Cal. 180), that no section of the Arbitration Act says that an unfiled award is a nullity and if the agreement for arbitration itself stipulates that the award shall be binding on the parties, then the award, subject of course to the rules of exception recognised by the arbitration agreement or the grounds permitted by the Arbitration Act, remains binding as part of the agreed contract, even though it is not filed in Court. We would, therefore, agree with the learned Government counsel that in view of the conflict in judicial opinion on this point, we should decide the main question involved in the appeal, rather than dispose of the appeal on the preliminary point only.
3. The question, as stated above, is whether legal pro--ceedings can be taken to contest an award, that is, to have it-- set aside or adjudged a nullity, even though it has not been filed in Court under the provisions of the Arbitration Act. Before coming directly to this question, it will be useful to examine the scheme of this Act. This act was enacted to consolidate and amend the law relating to arbitration which, before the act came into force, was contained in the Indian Arbitration Act, 1899 (IX of 1899) and the Second Schedule to the Code of Civil Procedure. 1908. The operation of the 1899 Act was confined to the Presidency Towns and to such other areas to which it was extended by the Provincial Government, and the Act applied only to arbitrations without the intervention of the Court. The Second Schedule to the Code of Civil Procedure related to arbitrations not embraced within the scope of the 1899 Act; and for the most part dealt with arbitrations in suits, though provision for arbitration without intervention of the Court was also made. The pro--visions of the 1940 Act which are relevant for the purpose of this appeal are sections 14 to 17, and sections 30 to 33. Under section 14, the arbitrators are to sign and to give notice of the award to the parties, and at the request of any party to the agreement, or if directed by the Court to cause the award, or a signed copy thereof, to be filed in Court, and thereupon notice shall be given to the parties of such filing. Under section 15, the Court is empowered to modify or correct the award, in the circumstances mentioned therein. Section 16 empowers a Court to remit the award, or any matter referred to arbitration, to the arbitrators or umpire for reconsideration on any of the grounds stated in this section. Then comes section 17, which provided that where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration, or to set aside the award, the Court shall, after the time for making the application to set aside the award has expired, or after such application has been refused, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow. Under section 30, an award may be set aside by the Court on one or more of the following grounds:
(a) that an arbitrator or umpire has misconducted himself or the proceedings ;
(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35 ;
(c) that an award has been improperly procured or is otherwise invalid.
Under section 31, it is provided, amongst other things, that an award may be filed in any Court having jurisdiction in the matter to which the reference relates and further, all questions regarding the validity, effect or existence of an award or arbitration agree--ment between the parties shall be decided by the Court in which the award has been, or .May be, fled and by no other Court.
Section 32 creates a bar on suits to contest an arbitration agreement or an award, by providing that no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or an award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way effected, otherwise than as provided in the Act. Under section 33, any party to an arbitration agreement, or any person claiming under him, desiring to challenge the existence or validity of an arbitration agreement or an award, or to have the effect of either determined, shall apply to the Court and the Court shall decide the question on affidavits, provided that where the Court deems it just and expedient, it may decide the case on other evidence.
4. These sections of the Arbitration Act may be compared with the provisions of the Second Schedule (now repealed) to the Code of Civil Procedure, 1908. It has been stated above that the provisions of this Schedule related mainly to arbitrations in suits. Paragraph 3 provided that an order of reference may be made by the Court on the application of the parties to the suit.
Paragraph 12 empowered the Court to modify or correct the award on any of the grounds stated therein, that is to say:
(i) where it appeared that a part of the award is upon a matter not referred to arbitration and such part can be separated from the other part ;
(ii) where the award is imperfect in form, or contains any obvious error which can be amended without effecting such decision; or
(iii) where the award contains a clerical mistake or an error arising from accidental slip or omission.
Under paragraph 14 the Court was given power to remit the award or any matter referred to arbitration for the reconsideration of the arbitrators or umpire where the award left undetermined, or where it determined any matter not referred to arbitration; or where the award was so indefinite as to be incapable of execution; or where an objection to the legality of the award is apparent upon the face of it. Paragraph 15 provided that no award should be set aside except on one or more of the following grounds, namely:
(a) corruption or misconduct of the arbitrators or umpire ;
(b) either party had been guilty of fraudulent concealment of any matter which he ought to have disclosed, or of willful by misleading or deceiving the arbitrators or the umpire;
(c) the award having been made after the issue of an order by the Court superseding the arbitration and proceeding with the suit, or after the expiration of the period allowed by the Court, or being otherwise invalid.
Paragraph 16 provided that where the Court saw no cause to remit the award or any of the matters referred to an arbitration for reconsideration, and no application was made to set aside the award, or the Court had refused such application, then in such case judgment should be pronounced according to the award and upon the judgment so pronounced a decree should follow.
Paragraphs 20 and 21 of the Schedule related to arbitrators without the intervention of the Court.
Under paragraph 20, any party could apply to the Court for order that the award be filed.
Paragraph 21 provided that if the Court was satisfied that a matter had been referred to arbitration and that an award had been made and that there was no ground for remission or setting aside of the award, then in that case the Court should order the award to be filed and should proceed to pronounce judgment according to the award, and this having been done, a decree should follow the judgment. The analogous provisions of the Arbitration Act, 1899 are sections 11, 13; 14 and 15.
Under section 11 an arbitrator, after making the award and giving notice to the parties, was required to file the award in Court on the request of any party to the submission. Under section 13, the Court was given power to remit, the award to the re--consideration of the arbitrator or umpire. Under section 14, the Court could set aside the award if the arbitrator or umpire had misconducted himself, or the arbitration or award had been improperly procured. Under section 15, the award, on being filed in the Court, was enforceable as a decree of the Court.
5. The provisions of the Arbitration Act, 1940 and of the law of Arbitration which prevailed before the enactment of this statute have been reviewed because the decisions in the Indian jurisdiction, which alone were cited before us, have dealt with the question at issue with reference to these provisions. Turning to these decisions, the first case in point is Ratunji Virpal do Co. v. Dhirojipal Manilal (AIR 1942 Bom. 101), in which Cbagla, J., as lie then, was, held that under the Arbitration Act of 1940 it was riot competent to file a petition for setting aside the award till the award had been filed in Court. The learned Judge referred to the argument that the provisions of section 31(3) of the Act provide that all applications regarding arbitration shall be made to the Court where the award has been, or may be filed and to no other Court, and, therefore, an application to set aside the award could be filed in the Court where the award would be filed but has not been filed, the learned Judge held that this provision should be read with subsection (2) of section 31, under which all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement shall be decided by the Court in which the award has been, or may be filed, and by no other Court. In the opinion of the learned Judge, in subsection (2) the phrase "the Court in which the award under the agreement may be filed" has reference only to proceedings in connection with the arbitration agreement and, therefore, if a question arises with regard to the validity, effect or existence of an arbitration agreement, then the question has to be decided by the Court in which the award, which may result from the arbitration agreement, may be filed. If the question is with regard to the award itself, then the question has to be determined by the Court in which the award has been filed. Proceeding further, it was held that in cases where the party feared that it may be prejudiced by the award, then the compe--tent procedure is either to call upon the arbitrator to file the award in Court, or to obtain a direction from the Court to arbitrator to file the award, and it is only after such filing that an application to set aside the award could be filed. This conclusion was based on the language of Article 158 of the Limitation Act, 1908, under which an application to set aside the award or to get an award remitted for re-consideration can be made within 30 days from the date of service of the notice of filing of the award. The learned Judge appeared to be of the view that an, application to set aside the award could only be made after the date of service of such notice and not otherwise.
6. The next decision is that of the Calcutta High Court in Bengal Jute Mills v. Jewraj. Heerlal (AIR 1944 Cal. 304), in which McNair, J., held that the effect of sections 14 and 31 of the Arbitration Act was that an application to set aside the award could not be entertained if the award had not been filed in Court. With regard to the words "may be filed" in section 31(2), the learned Judge held that it is not an enabling section, but a section, which merely defines the jurisdiction by pointing out to a particular Court which may deal with the question regarding the validity, effect or existence of an award. The learned Judge further held that the scheme of the Arbitration Act, 1940, particularly section 14 of the Act, contemplated that the Court could consider an award only when it had actually been filed in the Court. This question came up for consideration again before the High Court of Calcutta in I. C. H. Arijf and others v. Bengal Silk Mills Ltd. And another (AIR 1949 Cal. 350), in which S. R. Das, J., held that an application under section 33 of the Arbitration Act for setting aside the award, so far as it prays for a declaration that there was no submission or arbitration agreement and that the arbitrator had no jurisdiction to act as such arbitrator, is main--tainable in Court in which the award may be filed, even if the award had not been filed when the application was made; and as regards the application for setting aside the award on the grounds stated in section 30, if such application was made before the filing of the award, then the defect was curable by the subsequent filing of the award. This decision went in appeal, but the appellate judgment appears, in Bengal Silk Mills Co. Ltd. v. Aisha Ariiff (AIR 1947 Cal. 106), (the anomaly appears to be due to mistake in reporting). Both Gentle and Ormand, JJ., held that an application to set aside the award cannot be made without the award being filed in Court. But Gentle, J. Dissented from Chagla, J.'s opinion in Ratanji Virpal & Co., v. Dhirajilal Manilal that such an apple--cation could only be made after the service of the notice of filing of the award, as, in his opinion, Article 158 of the Limitation Act could not be taken as a test as to when the right to make an application to set aside an award arises. But Gentle, J., took the situation into consideration in which the very existence of the award is questioned in which case, he thought, the filing of the award was not necessary as the award itself does not exist. However, in his view, the determination of the validity or effect of the award may raise the question whether the award should be modified, corrected or remitted, which cannot be done unless the award is before the Court. Ormond, J., however, qualified his agreement with the view that an application to set aside the award could not be made without the award being filed in Court by stating that he would prefer to put his conclusion only on general grounds and not on any such interpretation of the language of section. 31 as was suggested by Chagla, J.
With regard to this section, the learned Judge tools the view that the double alternative `has been' or 'may be' is equally applicable to an award as to the arbitration agreement for the purpose of determining the validity, effect or existence thereof, and, further, the language of the section can be read as being equally correct if the legal position is, that an application to set aside an award can be made before its filing, as if it is, that it cannot. Notwith--standing this interpretation, Ormond, J., preferred to take the cautious course by agreeing with the view of Gentle, J. The High Court of Patna also, in Lachhmf Prasad v. Gobardhan Das and others (AIR 1948 Pat. 171), agreed with the view taken by the Bombay High Court, which was adopted, as noted above, by the Calcutta High Court also in some of its decisions, that until the award is filed, no application to set aside can be entertained. Reference may here be made to another decision of the High Court of Calcutta, Bajranglal Laduram v. Ganesh Commercial Co. Ltd. (AIR 1951 Cal. 78), in which a Division Bench held that an application to set aside an award pre-supposes an award made with jurisdiction, and that if it is contended that the arbitrators had no jurisdiction, proceedings for setting aside the award under section 30 would not be appropriate and that in such a case, the proper course would be to move the Court by an application under section 33 of the Act.
7. I will now take up the main case on which reliance has been placed by the respondent No. 1. This case is A. R. Savkur v. Amritlal Kalidas and others (AIR 1954 Bom. 293) and the judgment is again of Chagla, who was the C. J. The challenge to the award in this case was made by an application which was moved for more than 30 days after the service of notice of the filing of the award. The application was rejected as barred by limitation. In appeal, it was contended that the application was one under section 33 of the Arbitration Act, and it was not to set aside the award, but for a declaration that the award was invalid, in which case, it was contended, the case was governed not by Article 158 of the Limitation Act, but by the residuary Article 181. The scope of sections 30 and 33 was discussed by the learned Judge at length with reference to sections 17 and 39 of the Arbitration Act, and Article 158 of the Limitation Act. In his view, section 30 deals with the grounds on which an award may be set aside, whereas section 33 contains procedural provisions, that is, provisions with regard to the procedure to be followed in making an application to set aside the arbitration agreement or an award, and that whatever may be the nature of the challenge to the award, the result would in every case be the setting aside of the award, as the Court could not give a mere declaration that the award is invalid, without further proceeding to set it aside. This view, in the opinion of the learned Judge, is supported by the scheme of section 17, which makes it incumbent upon the Court to pronounce judgment according to the award except in three cases, that is, (i) where there is no cause to remit the award or any of the matters referred to arbitration for re-consideration of the arbitrators or the umpire; (ii) where the Court sees sufficient cause to set aside the award or (iii) where the time for making the., application to set aside the award has not expired. The learned Judge goes on to say that under section 17, an opportunity is given to the parties who dispute the award to make an application to set it aside, but this application should be filed within the period of limitation prescribed by Article 158 of the Limitation Act, and that if no such application is made, or an application has been made but has resulted in dismissal, then there is no other course for the Court but to give a decree in terms of the award. The argument that a challenge to the award can be made either under section 30 on the grounds stated therein or under section 33 in a case where the challenge is to the validity of the award, say for the reason that the arbitrator had no jurisdiction, was not accepted by the learned Judge, as, in his view, acceptance of this contention would produce the result that there would be two periods of limitation, one for applications under section 30, which have to be made under Article 158 of the Limitation Act within 30 days of service of the notice of the filing of the award, and the other for applications under section 33, which could be made within 3 years under the residuary Article 181.
Such interpre--tation, in the opinion of the learned Judge, would create anomalies, in that a party may allow an award to become the decree of the Court by failing to make an application to set it aside on receipt of notice of its filing and then, within three years, make an application under section 33 to challenge the validity of the award itself on the grounds that it was made without juris--diction, or such other ground as would render the award a nullity. Therefore, the learned Judge came to the conclusion that every challenge to the award has to be by an application to set it aside, and such application can be made only under section 33 of the Act, though the grounds of challenge are contained in section 30, the expression "otherwise invalid" in clause (c) covering, in his opinion, even grounds which would render the award void or a nullity. This argument is sought to be supported by reference to section 39, which gives a right of appeal to set aside the award, but not the right of appeal against an order refusing to declare the award invalid.
8. The next case of importance is the Full Bench decision of the Calcutta High Court in Saha & Co. v.
Ishar Singh Kirpal Singh & Co. (AIR 1956 Cal. 321), The majority judgment is to the effect that the Arbitration Act, 1940 does not distinguish between an application for setting aside an award and an application for adjudging the award a nullity and that the Act does not contemplate that an application of the former kind should be made under section 30 of the Act, and an application of the latter kind under section 33, and, further, that all applications challenging the award must be made under this last section and they must be applications for setting aside the award, except in cases where the existence of the award itself is challenged. With regard to the expression "otherwise invalid" in section 39 (c) the majority view is that the rule of " ejusdem generis " cannot be applied in construing this expression, which being a general expression would cover all forms of invalidities, including invalidities which amount to nullities.
9. The Indian decisions reviewed above appear to be based on certain assumptions with regard to the scheme of the Arbitration Act, 1940. I do not include in these decisions the several cases to which I would advert later, and the Calcutta cases, namely I. G. H. Ariff and others v. Bengal Silk Mills Ltd. And another and Bajranglal Laduram v. Ganesh Commercial Co. Ltd. To which I had had to refer with these other decisions as the views taken in these two cases were dissented from in the subsequent decisions of the same Court. These assumptions may be enume--rated as follows :-
(i) That the scheme of sections 15, 16, 17 and 30 requires that the Court can act on the award only if the award is before it, and that the award can come before the Court only if it is filed under section 14 of the Act ;
(ii) that all grounds on which an award may be challenged are contained in section 30, and that these grounds include grounds which would even render the award a nullity ;
(iii) that an award can be questioned in Court only by an application to set it aside on grounds stated in section 30, and the machinery or procedure for making such application is contained in section 33 of the Act, and that the Act does not contemplate two applications with separate periods of limitation, that is, one under section 30, and the other under section 33 of the Act.
(iv) that if no application is made to set aside the award after service of its filing, or if such application has been made has been refused, or if the Court sees no cause to remit for consideration the award or any of the matters referred to arbitration, then it is incumbent upon the Court to pronounce judgment according to the award and a decree would then follow such judgment.
10. The main assumption upon which the Indian Courts have proceeded is, that an award can come before the Court only under section 14 of the Arbitration Act. But this assumption, in my opinion, is without any substance. Section 14 of the Act is not exhaustive of the ways in which an award may come before the Court. This section makes provisions for the filing of the award by the arbitrator either at the request of any party to the arbitration agreement, or on the directions of the Court. But there may be situations when the arbitrator or the umpire is not at all in a position to file the award in Court. One of such situations is contemplated in section 38 of the Act itself, which provides that where an arbitrator or umpire refuses to deliver the award except on payment of fees demanded by him, the Court may, on application made in this behalf, order that the arbitrator or umpire shall deliver the award to the applicant on payment in the Court by the applicant the fees demanded by the arbitrator or umpire, the quantum of the fees to be deter--mined by the Court subsequently, in a case of this nature, the arbitrator, after delivering the award to the party, is no longer in a position to file the award in Court, either at the request of any party to the arbitration agreement, or even on the directions of the Court. The provisions of this section would suggest that filing of the award in Court need not be only under section 14 by the Arbitrator or umpire. Even a party to the arbitration agree--ment may file the award in Court and may apply for its enforcement. This is the view which has been taken in several reported decisions. Thus, in John B.
Pass v. Soomar (AIR 1943 Sind 33), three distinct ways were recognised of filing an award in Court that is-- (i) under section 14(2) by the arbitrator or umpire at the request of a party; (ii) under the same provision by the arbitrator or umpire on the directions of the Court; and (iii) by a party to the arbitration agreement to whom the award has been delivered under section 38 of the Arbitration Act. Dealing with this third manner of the filing of the award, Lobo, J., observed as follows:- ---Now it follows that a person who has obtained possession of an award through the assistance of the Court under section 38 must have the right to file it in Court, otherwise he will have sought the assistance of the Court to no practical purpose whatever and the Court will have made the order which affords the applicant no material relief.--- It was further held in this case that where an award is filed by a party who has obtained it under section 38, Article 158 of the Limitation Act would not be applicable. Then, in a Lahore, decision, Fazal Rasul Khan v. Mohd-ul-Nisa (AIR 1044 Lah. 394), Abdur Kehman, J., held that section 14 of the Arbitration Act is not exhaustive and that an application by a party for enforcement of the award could be made in the absence of a clear provision in the Act to the contrary. The same view was adopted by the Allahabad High Court in Bhagwan Radha Kishen v. Commissioner of Income-tax (AIR 1952 All. 856), and by the High Court of East Punjab in Ganga Ram v. Radha Kishan (AIR 1955 Ph.
145). The Allahabad High Court, in a later decision, Haji Rahmetullah v. Chaudhari Vidya Bhusan (AIR 1963 All 602), reaffirmed its earlier view and held that the Court was competent to act under section 17 of the Act upon an award filed by one of the parties to the arbitration agreement. Even this Court has followed the view taken in the Sind and Lahore decisions. I would refer to the decision in Mrs. Keays Byrne v. M. Obaidullah Khan (PLD 1959 Lah. 146), in which Waheeduddin Ahmad, J., (as he then was) held that section 14 of the Arbitration Act is not the only provision of law under which an award can be filed and made rule of the Court, and that an award can be filed by one of the parties to the arbitration agreement, whereupon the Court can give a decree in terms of the award. This view has also prevailed in a Calcutta decision, namely, Panchanan Dey v. Union of India (AIR 1959 Cal. 84). In this case, the umpire died before filing the award in Court. It was held that section 14 would not apply to such a case, and that in cases of this nature direction can be given by the Court under section 151, C. P. C. To any party to file the award in Court. It should be noted that in this case one of the parties to the agree--ment happened to have possession of the original award under the signature of the umpire himself. But a situation may be contemplated where the arbitrator or umpire merely gives copies of the award to the parties and retains the original award himself, but dies before filing it in Court. In such an event it may not all be possible for the Court to obtain the original award. On parity of reasoning it should be competent for the Court to act upon the copy of the award which may be filed by a party to the arbitration agreement, and the Court could then proceed to act in terms of section 17 of the Act. The various courses, indicated above, for filing of the award and for the Court acting upon it in terms of section 17 are gathered from the scheme of the Arbitra--petition Act, particularly section 38, and from the judicial consensus that the method of filing of the award contained in section 14 is not at all exhaustive. It will be useful to take note of the English practice also. In England the award, or its duplicate, is produced by the party who seeks its enforcement, together with a copy of the award, both to be verified by affidavit.
(See Russell on Arbitration, p. 288, 17th Edition). Now, if a party can file an award, or its copy, and apply to the Court for its enforcement under section 17 of the Act, so, a fortiori, a party may file the award or its copy in Court, with an application that the Court should proceed to set aside the award, or to declare the award invalid, whether it be done under section 30 or under section 33 of the Act.
11. I will deal with the next two assumptions, on which the Indian Courts have proceeded, together.
In this connection; the first point which requires consideration is whether an award can be challenged only under section 30 of the Arbitration Act on grounds contained in this section, which grounds should be deemed to include every kind of invalidity, even an invalidity which would render the award void or a nullity. This section is substantially in the same terms as clauses (a), (b) and (c) of paragraph 15 of the Second Schedule to the Code of Civil Procedure. Clause (c) of this paragraph has been shortened and put in general form as clause (c) in section 30 of the Act. Both the clauses contain the words "otherwise invalid" at the end. This expression has been the subject of interpretation by the Judicial Committee of the Privy Council in Chhabba Lal and others (AIR 1946 PC 72). This decision was on an appeal from the High Court of Allahabad. The Courts in India had from time to time taken the view that the phrase "otherwise invalid" included every, kind of invalidity. But the Privy Council held that this expression was ejusdem generis with the preceding grounds, that is, that the invalidity contemplated by this expression was of like nature with other grounds contained in clauses (a), (b) and (c) in paragraph 15 of the Schedule. The real basis of the Privy Council's decision is that if there is no valid reference, the purported award is to nullity, and can be challenged in appropriate proceeding. Before the enactment of the Arbitration Act, 1940, the well established rule was that challenge to the award on a ground, which would render it void or a nullity was made by a suit. To this effect is the decision of Privy Council in E. D. Sasson & Co. v.
Ramdutt Ramkissen Das (AIR 1922 P C 374), where it was held that any objection to an award on the ground of misconduct or irregularity on the part of the arbitrator ought no doubt to be taken by motion to set aside the award, but, where it is alleged that an arbitrator has acted wholly without jurisdiction, his award can be questioned in a suit brought for that purpose. But with the enforcement of the Arbitration Act, 1940, the remedy of suit became unavailable for the purpose of challenging the award on the ground of its nullity. The Act introduced new provisions, contained in sections 31, 32 and 33, which were included neither in the Second Schedule to the Code of Civil Procedure, nor in the Arbitration Act, 1899. The purpose of these new provisions was to provide for a summary procedure to afford reliefs in arbitration cases. It was for this reason that an express bar on suits is created by section 32 of the Act. It is in the light of these three sections, and the law of arbitration which prevailed before the enactment of the Arbitration Act, 1940, that the scope of sections 30 and 33 should be considered. The grounds contained in clauses (a), (b) and (c) of section 30 cannot be interpreted in a way so as to include challenge to the award on the ground of absence of arbitration agreement, or want of jurisdiction in the arbitrators or umpire, or such other invalidities as would render the award or the proceedings before the arbitrator void or nullity. This would become evident from an examination of the language of section 33. This section deals with the existence or validity of an arbitration agreement, to which section 30 makes no reference at 11, and further, section 33 also contemplates a proceeding which may have as its purpose the determination of the effect of an arbitration agreement or an award by the Court. There is no like provision in section 30 which deals only with the question of setting aside the award on grounds stated therein. These grounds refer only to invalidities which occur in the course of the arbitration proceedings. It is these kinds of invalidities which are also contemplated by section 17 of the Act, when this section provides that where the Court sees no cause to remit or to set aside the award, ft should pronounce judgment in terms of the award. In the Bombay decision A. R. Savkur v. Maritlal Kalidas and others, the view has been taken that an award which is a nullity would come under sections 17 and 30, and if no steps are taken to have it set aside, or remitted for reconsideration, then in that case it would be incumbent on the Court to pronounce judgment in terms of the award, and that all objections, including objections to the existence of the arbitration agreement or the award, must be taken by an application to set aside the award. In my view, the learned Judges who decided this case read in section 30 of the Arbitration Act, 1940 much more than would be warranted by its language. The fallacy inherent in this view would become apparent if note is taken of the situation where the very existence of the award or of the arbitration agreement is challenged. In such a case, there can be no question of applying for setting aside the award which does not exist. An award which is void or a nullity need not be set aside. The learned Judges in the Bombay case were troubled by two prospects-(i) that if section 33 is treated as an independent section, then there would be two applications contemplated by the Arbitration Act to challenge an award, with two separate periods of limitation and (ii) that if an application to adjudge the award a nullity is refused, then there is no provision for appeal against such order under section 39 of the Act. But it would be unreasonable to limit the scope of section 33 of the Arbitration Act on consider- -ation of the periods of limitation. Article 158 of the Limitation Act cannot be made a test for determining the scope of either section 30 or section 33 of the Arbitration Act, nor is the apprehension that a person may allow an award to become a decree of the Court, and then bring an application under section 33 to have the award adjudged a nullity, a sufficient justification to treat section 33 only as procedural section and section 30 as the section under which all application to challenge an award must be made. That an award which has become rule of the Court can still be challenged on the ground of nullity, was recognised by a Judicial Committee as long ago as 1922 in E. D. Sasson & Co. v. Ramduit Ramkissen Das, where it was held that the fact that the award has been enforced by execution is not a bar to a suit to have it declared void. The rule that the plea of want of jurisdiction should be considered, however late it may be raised, is quite a well established rule. Thus, the Privy Council held in Ramlal Hargopal v. Kishanchand and others ((1923-24)51 1 A 72), that their Lordships would be bound to take note of the objection to the jurisdiction howsoever late in the day it may be raised. This view was reiterated in a later decision, Chief Kwame Asants v. Chief Kwame Tawia (PLD 1949 P C 45), and has been recognised by our own Supreme Court in Abdul Hamid v. H. M. Qureshi (PLD 1957 SC (Pak.) 145). The Bombay view that an award which has become rule of the Court should not be allowed to be challenged subsequently on the ground of want of jurisdiction, or like grounds which would render the award invalid, is contrary to the judicial consensus according to which a plea of this nature must be entertained even if it is raised at a very late stage. We would add, that perhaps where a party has made inordinate delay in seeking the assistance of the Court to adjudge the award or arbitration agreement a nullity or non-existent, and where, for coming to this conclusion, inquiry into facts may be necessary, the Courts, in appropriate cases may apply the rule as to laches. But we would refrain from giving any decision on this point now, as no question of this nature arises in the present proceedings, nor any such plea has been taken by the appellants in the Courts below or even before us. With regard to the absence of any provision in section 39 of the Act for appeals against an order refusing to declare the award invalid, the learned Judges in the Bombay case appear to have failed to take into consideration that where section 39 is not available, the revisional powers of the High Court contained in section 115, C. P. C., can be invoked. This rule is widely recognised by the Courts both in India and in Pakistan. In this connection reference may be made to these decisions.Tropical Insurance Co. Ltd., New Delhi v. The Superintendent of Insurance Commerce Department, Govern--ment of India, New Delhi (AIR 1942 Lah. 267), Tirath Singh and another v. Isher Singh (AIR 1948 Lah. 50), D. L. Charan Das v. L. Gur Saran Das Kapur (AIR 1945 All.
146), Sm. Balika Devi and another v. Kedar Nath Puri (AIR 1956 All 377), Ouppalla Ramulu v. Nagidi Appallaswa mi and others (AIR 1957 Andb. Pra. 11), and R. N. Rice Mills v. State of Orissa (AIR 1959 Orissa 4). Where the order refusing to declare the award invalid is made by the High Court in exercise of its Original Civil Jurisdiction, then this order would be a judgment and appealable under the provisions of the Letters Patent (See Sh. Mahboob Alam v. Sh. Mumtaz Ahmad (PLD 1960 Lah.
601) and Governor--General of Pakistan v. Asafia Construction Ltd. (PLD 1964 Kar. 614).
12. The Bombay decisions reported in Ratanji Virpal & Co. v. Dhirafal Manilal and A. R. Savkur v.
Amritlal Kalidas and others have not been consistently followed in India itself. Some decisions which have taken a contrary view have been referred to above, and in my opinion it will be useful to take brief note of these decisions again together with some other decisions relevant on the point.
Thus, S. R. Das, J., in the case reported as I. G. H. Ariff and others v. Bengal Silk Mills Ltd. And another treated sec--petition 33 as a section under which an application can be made for a declaration that there was no submission or arbitration agree--ment. As noted above, this case went in appeal and is reported in AIR 1947 Cal.
106. This was a Division Bench decision, and it reversed S. R. Das, J.'s opinion that an application under section 33 for the declaration of the award as a nullity was maintainable even before the filing of the award. But both Gentle and Ormond, JJ, took the view that an appreciation challenging the existence of the arbitration agreement or the award would perhaps, come under section 33 of the Act. In the Madras case, J. Kuppuswami Chetty v. B. C.
Anantharamier and another (AIR 1948 Mad. 40), section 33 of the Act was treated as an independent provision for the purpose of challenging the existence of the award itself. The Calcutta High Court in a case decided in 1951, Messrs Bajranglal Laduram v. Ganesh Commercial Co. Ltd.
Took the view that section 33 has an independent existence and an award can be challenged thereunder for want of jurisdiction. In a Bombay case, Hastimal Dalichand Bora and others v. Hiralal Motichand Mutha (AIR 1954 Born. 243), although the Division Bench took the view that challenge to the validity of the award on any ground should be made by an application under section 33 within the time prescribed by Article 158 of the Limitation Act, yet it is open to the Court to act suo motu if it finds the award patently illegal or void, in which case no question of limitation would arise. The learned Judges who decided this case were of the opinion that sections 17 and 30 of the Act themselves conferred jurisdiction on Courts to suo motu exercise powers in cases in which the award suffered from such illegality as to render it void. In Ismail v. Hansraj and another (AIR 1955 Raj 153), the Bombay decision reported in A. R. Savkur v. Amritlal Kalidas and others, was expressly dissented from, and it was held that section 33 has independent existence so as to enable a party to challenge the award on the ground of nullity. In the same decision it was further held that; independently of sections 17 and 30. And apart altogether from an application filed by a party, the Court has an inherent power to, refuse to recognize an award where it suffers from a patent illegality and that even if an application of a party to set aside an award is time-barred, the Court can refrain from passing of a, decree in terms of the award if the award is defective on its very face. The question came for a detailed discussion before a Full Bench of the Calcutta High Court in Saha & Company v: Ishar Singh Kirpal Singh & Co. The majority opinion was that there was no distinction in the Indian Arbitration Act between an application for setting aside an award and an, application for the judgment of an award to be a nullity and, that the Arbitration Act does not contemplate that an application of the former kind should be made under section 30 of the Act and an application of the latter kind should be made under section 33. However, Chakravartti, C. J., who contributed to the majority opinion, introduced his own qualification to this proposition by stating that sections 30 and 33 are not co. Extensive, as section 33 deals with both agreements and awards, while section 30 deals with awards only. According to him, the application challenging the existence of the award can be conceivable as an application under section 33, the ambit of which is wider than that of section 30. S. R. Das Gupta, J., who was in minority, took a view which is more consistent with the scheme and language of the Arbitration Act, 1940. According to him an application for setting aside an award must be made on one or other of the grounds mentioned in section 30, but an application challenging the award on any other ground should be made under section 33, and that the non-existence or invalidity of the reference cannot be a ground of an application for setting aside the award. The same view was taken by Bachawat, J. The Patna High Court also, in the case reported as Deep Narain Singh and others v. Mt. Dhaneshwari and others (AIR 1960 Pat. 101), has now come to the view that objection on the ground of invalidity of reference is not covered by section 30, but has to be taken by an application under section 33 of the Arbitration Act and further, that section 17 of the Act imposes an independent duty on the Court to set aside an award suo motu if it is found to be a nullity. Lastly, I would refer to a decision of one of the High Courts in Pakistan, that is, Messrs Badri Narayan Agarwalla v. Messrs Pak. Jute Balers Ltd. (PLD 1966 Dacca 262), in which a Division Bench took the view that challeng, to the existence of the validity of an arbitration agreement or an award may be taken under section 33 of the Act. Thus, it will be seen, that the Bombay decisions in Ratarijt Virpal & Co. v. Dhirajlal Manilal and A. R. Savkur v.
Amridal Kalidas and others have not been uniformly followed in India itself. On the contrary, the view has now come to prevail that section 33 has an independent existence and takes the place of a suit, which was permissible before the enactment of Arbitration Act, 1940, for the purpose of challenging the arbi--tration agreement or an award on any ground which Would render either of them void or a nullity.
13. I have not dealt with one of the assumptions on which the Indian Courts have proceeded, that is, that the Court can take no action unless the award is filed before it. In my opinion, C this view is not sound, nor is such an interpretation warranted by the language of section 33 of the Act, S. R. Das, J.
Took the view in I. G. H. Ariff and others v. Bengal Silk Mills Ltd. And another that an application can be made under section 33 for adjudging the award to be invalid without the award being filed in Court, but an application to set aside the award pre-supposes that the award is before the Court.
In the Madras decision in J. Liuppuswami Chetty v. B. V. Anantharamier and another, Gentle, J., agreed with this view. In another Calcutta case, Bengal Silk Mills Co. Ltd. v. Alsha Ariff, Ormond, J., was inclined to take the view that the grammer of subsection (2) of section 31 makes it evident that the double alternative "has been" or "may be" is equally applicable to an award a3 it is to an arbitration agreement, and that the language of the section can be read as being equally correct if the legal position is, that an application to set aside an award can by made before its filing, as if it is, that it cannot. I think no other conclusion can be drawn from a plain reading of subsection (2) of section 31. The various Courts in India have been much troubled by the consideration that if the award is not before it, it may not be possible for the Court to consider whether the award requires modification or remission to the arbitrators or umpire for reconsideration, or setting it aside or its adjudgment as a nullity. Some Courts have held that a duty is imposed upon the party, who is pre- -judiced by the award, to apply to the Court for direction to the arbitrator or umpire to file the award in Court, so that such party may contest its validity, or raise such challenge as is contemplated by section 30 of the Act. But in our view, a similar obligation is cast on the party in whose favour the award is made. If this party does not take steps to obtain judgment and decree of the Court in terms of the award, then the party who is prejudiced by the award can come under section 33 to have the existence or validity of the arbitration agreement or the award, or to have the effect of either, determined by the Court. We can contemplate situations in which the Court, by reason of the absence of the award, may not be in a position to form any' opinion with regard to the validity or existence of the submission of the award, or even to determine the effect of either.
But in such a case, would it not be possible for the Court to give a declaration that the award shall not have any effect so long as it is not made rule of the Court and a judgment and decree is not pronounced by the Court of competent jurisdiction in terms of this award. The wide expression "to have the effect of either determined", used in section 33 should, in our opinion, enable the Court to give such declaration in appropriate cases. In such a case it would be equally correct for the Court to take into consideration the conduct of the parties to come to the conclu--sion whether it would be proper, in the given circumstances, to grant such declaration. Likewise, it is possible that in some cases there may be other difficulties in the way of such declaration, which difficulties it would be futile to dwell upon in the present case. Therefore, it can be reasonably held, that if an award isle not filed in Court, a party prejudiced by it, or the party in whose favour the award is made, can make an application under section 33 of the Act and may itself produce a copy of the award, arid invite the Court either to adjudge it to be invalid, or to set it aside or make it rule of the Court, or otherwise to determine the effect of the submission of the award. Even if the copy of the award or the arbitration agreement is not forthcoming, it should, in principle, be open to the Court to declare that the arbitration agreement or the award shall not take effect so long as the same is not filed in Court. The justification for this view can be found in the language of section 33 itself and in the view, adopted by several High Courts, that the provisions of the Arbitration Act are not exhaustive of the ways in which an award may be filed in the Court, and in the further view, adhered to by some High Courts, that an independent duty is imposed upon the Court to act suo motu in matters relating to awards, independently of the applications made or which may be made by any party thereto.
14. In the present case, the copy of the award was before the Court as it was annexed to the application made under sections 30 and 33 of the Arbitration Act. In view of the detailed discussion of the legal position, we are of the view that it was competent for the - trial Court to determine the existence validity, or the effect of the arbitration agreement or the award, F and to either adjudge it a nullity or to set it aside on the grounds contained in section 30 of the Act. The trial Court proceeded to reject the application of the respondent No. 1 on the basis of the views taken by the High Court of Bombay in the decisions referred to above, which decisions, however, have been dissented from in our opinion rightly, by several High Courts in India itself.
15. Our conclusion, therefore, is that the trial Court acted erroneously in rejecting the application under sections 30 and 33 of the Act. In this view of the matter we find no substance in this appeal which is consequently dismissed. However, we make no orders as to costs as the various points of law involved in this case were not without difficulty and had been differently dealt with by the various High Courts. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.