' KARAMAT NAZIR BHANDARI, J.---Through this review petition, the petitioner (Rahim Jan, respondent in appeal) seeks review of the judgment passed by this Court on 21-7-1991 in F.A.O. No 114 of 1988.
2. With a view to resolve monetary claim for sale of good-will of the office by the petitioner herein to the respondent, the parties agreed to resclve the dispute through arbitration. Late Justice (retired)
Salah-ud-Din delivered the award on 30-4-1980 and allowed the claim of Rahim Jan, petitioner in the sum of Rs,10,00,000 (Rupees one Million). The award was objected to but the same was made rule of the Court on 1-2-1983. Against the order of dismissal of objections and making award the rule of Court, Syed lkram Gardezi preferred an appeal initially in 1983 which memo. Of appeal went back to the Court of District Judge after some litigation. The appeal again came back to this Court due to change in law and was numbered as F.A.O. No 114 of 1988 as noted, the appeal was decided on 21-7-1991 in the following manner: "As a result I partly allow the appeal and modify the award in the exercise of powers conferred by section 15 of the Arbitration Act, 1940. The modification relates to upholding part payment of Rs,4,98,100 (rounded into Rs, 5,00,000) which the Arbitrator did not take into account. The remainder of the amount awarded was realised during pendency of the present appeal under the orders of the Court dated 28-7-1983. Nothing more is due to the respondent under the award. The parties are left to bear their own costs."
3. It will be seen that although the appellate judgment modified the award but in actual terms Rahim Jan, the petitioner, has been granted what was allowed to him under the award. However, he has preferred this review application on 8-3-1993 praying that the judgment dated 21-7-1991 passed in F.A.O. No 114 of 1988 be recalled.
4. Two preliminary objections have been taken by the learned counsel for the respondent. The first relates to the maintainability of the review petition as it is asserted that there is no power of review under Arbitration Act, 1940. The other objection is that under Article 173 of the Schedule to the Limitation Act, 1908, a review petition can be filed within 90 days but this petition filed after almost 500 days, is barred by time and has to be dismissed as such. In reply to the question of limitation, learned counsel for the review petitioner referred to the application under section 151 of the Civil Procedure Code, 1908 and prayed that for the reasons stated therein the delay be condoned and the petition be decided on merits. To the second objection and to show that review against the order passed in exercise of appellate jurisdiction under section 39 of the Arbitration Act, 1940 is maintainable, learned counsel relied upon two cases from Indian Jurisdiction viz, Executive Engineer, P.W.D. v. Lboyaima Singh (AIR 1970 Manipur 76) and The State v. Dandasi (AIR 1982 Orissa 239).
5. The question of maintainability of the review petition is crucial and the same may be taken up first.
6. It is well-settled that like a right of appeal, review is also a substantive right and has to be specifically created. There is no provision for review in Arbitration Act, 1940. Only a right of appeal against certain specified orders is available under section 39 of the Arbitration Act, 1940. Under section 32 of the Arbitration Act, 1940, notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award nor shall any arbitration agreement or award be set aside, amended, modified or in way affected' otherwise than as provided in this Act. The only possible conclusion is that the finality of the award can only be taken away in the manner provided under the Arbitration Act, 1940. The decision of the original Court under section 14/17 of the Arbitration Act, 1940 can be challenged by way of an appeal under section 39 of the Act and in no other way. A Fortiori no question arises to subject an award or an appellate judgment to a challenge by way of review.
7. By analogy, guidance can be obtained from the provisions of Urban Rent Restriction Ordinance, 1959 and the case-law thereunder. The aforesaid Ordinance does not provide for review of the order passed by the Rent Controller or by the District Judge on appeal. The question was debated and at least in two judgments namely Agha Muhammad Hassan v. Mehraj Din (PLD 1973 Lahore 95) and Sufi Nazar Hussain v. Mian Ijaz Nabi (PLD 1979 Note 30), the answer was in the negative, This Court concluded that in the absence of a specific statutory conferment of the power of review, neither the Rent Controller nor the District Judge on appeal can review any order passed under the Rent Restriction Ordinance 1959. This principle, in our judgment should apply with equal reason to the orders/decisions passed Wider the Arbitration Act, 1940.
8. The two judgments relied upon by Mr. Anwar Kamal, Advocate learned counsel for the petitioner in support of the proposition rely upon section 41 of the Arbitration Act for inferring in favour of the power of review. With respect, we are unable to subscribe to the view. Section 41 in our opinion refers to the procedural matters and not to substantive rights like appeal and review, It will be noticed that in a subsequent judgment viz Food Corporation of India v. Bibhutihusan Patna (AIR 1987 Orissan 230), the Orissa High Court itself changed its earlier view and held that the Court cannot review its order made under section 8 of the Arbitartion Act, 1940, appointing an arbitratoi.
In the case of Prafulla Chandra Karmakar and another v. Panhanan Karmakar and another (AIR 1946 Calcutta 427), the Court held that the provision of Order XXIII, Rule 3 of the Civil Procedure Code, 1908 are not attracted to proceedings under Arbitration Act, 1940. For the above reasons we hold that this review petition is not maintainable.
9. In view of the above decision as to non-maintainability of the review petition, we need not examine the question of limitation as even if the time is condoned, this petition will have to be dismissed as not maintainable. We, therefore, decline to give a decision on the question of limitation.
10. For the above reasons, this review petition is dismissed as not maintainable. No order as to costs.