Holding

Order IX Rule 13 CPC applies to decrees passed under Section 17 of the Arbitration Act, such decrees are ex‑parte for the objecting party, and applications under Sections 30/33 may be entertained with condoned delay.

Summary

The Union of India and others appealed against a decree passed by the High Court under Section 17 of the Arbitration Act, 1940 after an arbitrator's award, where the appellants had not filed objections within the prescribed 30‑day period. The High Court had held that such a decree was not an ex‑parte decree and therefore could not be set aside under Order IX Rule 13 of the CPC. The Supreme Court examined the applicability of Order IX Rule 13, Section 41 of the Arbitration Act and Section 141 of the CPC, and held that the provisions of the CPC apply to arbitration proceedings and that a decree passed under Section 17, where no objection is filed, is an ex‑parte decree for the objecting party. Consequently, an application under Sections 30 and 33 of the Arbitration Act can be entertained even after the decree, provided sufficient cause for delay is shown under Section 5 of the Limitation Act. The Court condoned the delay, set aside the ex‑parte decree and the award‑rule decree, and allowed the appeal.

Issues considered

Whether Order IX Rule 13 of the Code of Civil Procedure applies to a decree passed under Section 17 of the Arbitration Act, 1940 when no objection is filed.
Whether a decree passed under Section 17 can be treated as an ex‑parte decree for the purpose of setting it aside.
Whether an application under Sections 30 and 33 of the Arbitration Act can be entertained after the decree, with condonation of delay under the Limitation Act, 1963.

Legislation cited

Arbitration Act, 1940s. 15, s. 16, s. 17, s. 30, s. 33, s. 41
Code of Civil Procedure, 1908s. Order IX Rule 13, s. Section 141
Limitation Act, 1963s. 119, s. 5

Subjects

ArbitrationEx‑parte decreeOrder IX Rule 13Section 17 Arbitration ActLimitation ActCondonation of delaySetting aside awardCivil Procedure Code

Judgment

UNION OF INDIA AND ORS. A
v.
MANAGER, MIS JAIN AND ASSOCIATES

FEBRUARY 6, 2001

[M.B. SHAH AND S.N. PHUKAN, JJ.] B

Arbitration Act, 1940:

Section 17-Judgmen! and decree under-Order IX Rule 13 CPC-
Applicability of--A1mrd-Objectio11 to---Not filed within period of limitation- C
Ex-pa rte decree passed and award made rule of court-Application/or setting
aside such ex-parte decree not entertained 011 the ground that judgment and
decree under Section 17 is not an ex-parte decree under 0. IX R.13 CPC-
Correctness of-Held: In arbitration proceedings there may not be a practice
to describe parties as plaintiff or defendant-But that does not mean that 0. D
IX R.13 CPC is not applicable to a case where judgment is pronounced under
S.17-For a party objecting to an award such decree is ex-parte decree-
Hence, application for selling aside judgment and decree passed under S.17
can be entertained-Code of Civil Procedure, 1908, 0. IX R.13.

Sections 30 and 33-Application under Award-Objection to---Not E
filed within period of limitation-Ex-parte decree passed under S.17 on the
basis of award-Subsequently, objection application with prayer for
condonation of delay filed-Entertainment of-Held: Such application can
be entertained even after a decree is passed under S.17 provided sufficient
cause is shown-limitation Act, 1963, Sections 5' and Art. J19(a) Sch.
F
Words and Phrases:

"Proceedings "-Meaning of-In the context of Section 141 of the Code
of Civil Procedure, 1908.
G
- - ~· "Pronounce judgment"-Meaning of-In the context of S.17 of the
Arbitration Act, 1940.

The arbitrator passed an award against the appellants and no objections
under Sections 30 and 33 of the Arbitration Act, 1940 were filed within the
889 H
890 SUPREME COURT REPORTS (2001] I S.C.R.

A period of limitation prescribed under Article I I 9(b) of the Schedule to the
Limitation Act, 1963. The High Court, therefore, made the award rule of the
Court.

The appellants filed an application for setting aside the award and for
condo nation of delay in filing the application. The high Court rejected the
B application for setting aside the decree solely on the ground that the judgment
and decree passed in terms of Section 17 of the Act, where no objections
were filed before pronouncing judgment and passing the decree, cannot be
said to be an ex-parte decree within the meaning of Order IX Rule 13 of the
Code of Civil Procedure, 1908. Hence this appeal.

c

...
Allowing the appeal, the Court

HELD: I. Section 41 of the Arbitration Act, 1940 leaves no doubt that
in a proceeding where an application is filed for passing the decree on the
basis of the award submitted by the arbitrator, the provisions of the Code of
D Civil Procedure, 1908 are applicable and there is no provision which excludes
operation of Order IX. Similarly, in view of Section 141 CPC, the procedure
prescribed in the Code is to be followed as far as it can be made applicable to
all proceedings in the Court of civil jurisdiction. Hence, in the proceedings
initiated for making the award rule of the Court, provisions ofCPC including
Order IX Rule 13 would be applicable. [894-A-B]
E

-
2.1 Under Section 41 of the Act the provisions of CPC are made
applicable to arbitration proceedings before the Court and to the appeals
under the Act. In arbitration proceedings, there is no question of suit being
filed as award is kndered for passing decree in terms of the award. Similarly,
Section 141 CPC also contemplates proceedings other than suit in any court
F of civil jurisdiction and provides that procedure provided in the Code in regard
to the suit shall be followed as far as it can be made applicable. In such
proceedings, there may not be a practice or procedure describing parties as
plaintiff or defendant. Hence, in arbitration proceedings even if the suit is
not filed, procedure provided in CPC is applicable and there is no reason to
G hold that as no party is described as plaintiff or defendant, Order IX would
not be applicable. [899-C-E]
.....,. _ _
2.2. The provisions ofCPC are specifically made applicable and there
is no reason to hold that Order IX Rule 13 would not be applicable in a case
where judgment is pronounced under Section 17 of the Act in the absence of
H objection application tendered by the party objecting to the award. For all
U.0.1. v. MANAGER, JAIN AND ASSOCIATES [SHAH, .I.] 891
·· purposes such decree is· ex-pa rte for the party objecting to the award. Under A
CPC ex-parte decree has no technical meaning. !900-D!

Ba/raj Taneja v. Suni/ Madan, [1999[ 8 SCC 396; Kesoram Cotton
Mills Ltd, AIR 39 (1952) Cal 10; Government of A.P. v. Bactchala Balaiah,
AIR (1985) AP 52 and Ram Chander v. Jamna Shankar, AIR (1962) Raj. 12
referred to Webster's Comprehensive Dictionary International Edition, Vol. B
I (1984), referred to.

3. Even after a decree is passed under Section 17, an application under
Sections 30 and 33 of the Act can be entertained provided sufficient cause is
established. In either case the rejection of the application would be refusal to C
set aside the award. In case where such application is rejected on the ground
that it is delayed and no sufficient cause has been made out under Section 5
--4r' of the Limitation Act, 1963 it would be an appealable order under Section
39(l)(vi) of the Act. [902-B; 901-BI

Essar Constructions v. NP. Rama Krishna Reddy, [20001 6 SCC 94, D
relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. I 059 of
-x 2001.
E
From the Judgment and Order dated 7.10.99 of the West Bengal High
Court in A.P.O.T. No. 858 of 1998.

Mukul Rohtagi, B. Sunita Rao, Ms. Parul Mittal and Ms. Sushma Suri
for the Appellants.
F
Ashok H. Desai, D.A. Dave, Syed Ali Ahmad, Syed Tanweer Ahmad,
Girdhar G. Upadhyay, Vikas Bansal and R.D. Upadhyay for the Respondent.

The Judgment of the Court was delivered by

SHAH, J. Leave granted.
G
---·~
Question involved in this appeal is-whether provisions of Order IX
Rule 13 of the Code of Civil Procedure (for short referred to as "the CPC")
or the principles thereof are applicable in a case where objections under
Section 33 of the Arbitration Act, 1940 (for short referred to as "the Act") are H
892 SUPREME COURT REPORTS [200 I] I S.C.R.

A not filed and ex-parte decree is passed on the basis of the award filed before
the Court by making the award rule of the Court. The High Court has arrived
at the conclusion that Order IX Rule 13 CPC is not applicable in such cases.

Before appreciating the contentions, we would refer to few dates
pertaining to the question involved. Both th~ parties to the present appeal
B were having disputes regarding the work of design and construction of two
lane road bridge (both sub-structure and super structure) across Feeder Canal
at R.D.16.5 (Balance Work). In a Special Suit No. 31 of 1993 filed by the
present respondent, the High Court of Calcutta vide its order dated 25.6.1993
directed appointment of Arbitrator to settle their disputes. The Arbitrator
C passed an award on 28.12.1996 against the appellants herein which was filed
before the High Court on 6.3.1997. Notice for filing objections was received
by the appellants on 21.03.1997. Time of 30 days for filing the objections
expired on 20.4.1997, which was a Sunday and, therefore, the date stood
extended to 21.4.1997. The matter was placed before the Court on 28.4.1997
and on that day the Court rejected the oral prayer of the learned counsel for
D the appellants that since objection application under Sections 30 and 33 of
the Act was under preparation, time to file such application be granted. The
award was made rule of the Court on the same day. On 5.5.1997, appellants
filed an application for setting aside the ex-parte decree and also submitted
that application under Section 30 was ready. In the said application, grounds
E for setting aside the award and for condoning delay in filing application were
mentioned. Thereafter, another application under Section 33 of the Act raising
objections against the award was also filed on 16.5.1997. The learned Judge
by order dated 25.9.1998 dismissed the said application.

Being aggrieved, the appellant moved the Division Bench by filing an
F appeal. The Division Bench in view of conflicting judgments referred the
question-whether the decree passed in terms of Arbitration Award, where
no objection has been filed within 30 days from the date of filing of the award
in terms of the Act, would be an ex-parte decree within the meani.ng of Order
IX Rule 13 CPC-to the Full Bench? The Full Bench by judgment and order
G dated 7.10.1999 dismissed the appeal by holding that: -

" ... We are of the opinion that (I) the decree passed in terms of Section
17 of the Act where no objection is filed cannot be said to be an ex-
parte decree; (2) an application for condonation of delay in terms of
Section 5 of the Limitation Act may be applicable for filing an objection
H either under Section 30 or 33 of the Act or both; (3) as in the instant
U.0.1. v. MANAGER, JAIN AND ASSOCIATES [SHAH, J.] 893
case no such application has been filed, the quesiion of setting aside A
the decree does not arise; (4) an application for setting aside the
decree passed in terms of Section 17 of the Act is maintainable only
in a case where a decree has been passed in ignorance of the conditions
precedent laid down therein."

In the result, the High Court rejected the application for setting aside B
the decree solely on the ground that judgment and decree passed in terms
of Section 17 of the Act where no objections are filed before pronouncing
judgment and passing the decree cannot be said to be an ex-parte decree.
That judgment and order is under challenge in this appeal.

The aforesaid question is required to be decided on the basis of Section C
41 of the Act, which provides that provisions of CPC are applicable to all the
proceedings before the Court under the Act. It reads thus:

"41. Procedure and powers of Court.-Subject to the provisions of
this Act and of rules made thereunder-
D
(a) the provisions of the Code of Civil Procedure, 1908, shall apply
to all proceedings before the Court and to all appeals, under
this Act; and

(b) the Court shall have, for the purpose of, and in relation to, E
arbitration proceedings, the same power of making orders in
respect of any of the matters set out in the Second Schedule as
it has for the purpose of, and in relation to, any proceedings
before the Court:

,,,.. Provided that nothing in clause (b) shall be taken to prejudice any F
power which may be vested in an arbitn:tor or umpire for making orders with
respect to any of such matters."

Aforesaid Section is also required to be read in context of Section 141
of the CPC, which is as under:
G
"141. Miscellaneous Proceedings. -The procedure provided in this
Code in regard to suits shall be followed, as far as it can be made
applicable, in all proceedings in any court of civil jurisdiction.

[Explanation.-ln !his section, the expression "proceedings" includes
proceedings under Order IX, but does not include any proceeding H
894 SUPREME COURT REPORTS [200 IJ I S.C.R.

A under Article 226 of the Constitution]''

· Section 41 of the Act leaves no doubt that in a proceeding where an
application is filed for passing the decree on the basis of the award submitted
by t:1e arbitrator, the provisions of the CPC are applicable and there is no
provision which excludes operation of Order IX. Similarly, in view of Section
B 141 of the CPC, the procedure prescribed in the Code is to be followed as far
as it can be made applicable to all proceedings in the Court of civil jurisdiction.
Hence, in the proceedings initiated for making the award rule of the Court, -.( •
provisions of CPC including Order IX Rule 13 would be applicable. As per
the Explanation to Section 141. the expression ''proceedings" includes
C proceedings under Order IX CPC.

Other provision which is required to be taken into consideration is
Sectio11 5 of the Limitation Act, 1963, which inter a/ia provides for extension
of prescribed period of limitation in making application in the civil proceedings,
if the applicant satisfies the Court that he had sufficient cause for not making
D application within such period. For the purpose of filing objection application
before the Court, the relevant provision is Article 119 of the Limitation Act,
1963, which inter alia provides that period of limitation is 30 days for filing
the award in the Court from the date of service of notice of the making of the
award and 30 days for setting aside the award or getting an award remitted
for reconsideration from the date of service of notice of the filing of the award.
E It requires no further discussion that on sufficient cause being shown, ifthere
is any delay in filing an application for setting aside the award, it could be
condoned.

We would further refer to Sections 15, 16, 17, 30 and 33 of the Act,
which read as under: -
F
"15. Power of Court to modifj· award-(!) The Court may by order
modify or correct an award-

(a) where it appears that a part of the award is upon a matter not
referred to arbitration and such part can be separated from the
G other part and does not affect the decision on the matter referred;
or

(b) where the award is impe1fect in form, or contains any obvious
error which can be amended without affecting such decision; or
H (c) where the award contains a clerical mistake or an error arising
U.0.1. v. MANAGER, JAIN AND ASSOCIATES [SHAH, J.] 895
from an accidental slip cir omission. A
(Emphasis added)

16. Power to remit award-{ 1) The Court may from time to time remit
the award or any matter referred to arbitration to the arbitrators or
umpire for reconsideration upon such terms as it thinks fit-
B
(a) where the award has left undetermined any of the matters referred
to arbitration, or where it determines any matter not referred to
arbitration and such matter cannot be separated without affecting
the determination of the matters referred; or

(b) where the award is so indefinite as to be incapable of execution; C
or

(c) where an objection to the legality of the award is apparent
upon the face of it.

(2) Where an award is remitted under sub-section (1) the Court shall
D
fix the time within which the arbitrator _or umpire shall submit his
decision to the Court:

Provided that any time so fixed may be extended by subsequent order
of the Court. E
(3) An award remitted under sub-section (1) shall become void on the
failure of the arbitrator or umpire to reconsider it and submit his
decision within the time fixed."

(Emphasis added) F

17. Judgment in terms of award.-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 an application to set aside the award has expired, or
such application having been made, after refusing it, proceed to G
pronounce judgment according to the award, and upon the judgment
so pronounced a decree shall follow, and 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."

30. Grounds for setting aside award-An award shall not be set H
896 SUPREME COURT REPORTS [200 I J I S.C.R.

A aside except on one or more of the following grounds, namely:-

(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
B have become invalid under Section 35;

(c) that an award has been improperly procured or is otherwise invalid.

33. Arbitration agreement or award to be contested by application.-
Any party to an arbitration agreement or any person claiming under
c 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 shal I decide the question on affidavits:

Provided that where the Court deems it just and expedient, it may
set down the application for hearing on other evidence also, and it
D may pass such orders for discovery and particulars as it may do in
a suit."

In view of the aforequoted Sections, it can be stated that-

(a) after receipt of an award, the Court can suo motu refuse to make
E award rule of the Court on the ground that (i) part of the award
is upon a matter not referred to arbitration; and (ii) the award is
imperfect in form or contains any obvious error. The Court can
also remit the award to arbitrator in case (i) where the award has
left undetermined any matter referred to arbitration; or (ii) where
it has determined any matter not referred to arbitration; or (iii)
F
the award is so indefinite as to be incapablt of execution; or (iv)
is on the face of it illegal. This is also provided under parenthesis
clause of section 17 which provides "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
G Court shall ... proceed to pronounce judgment ... " Therefore, it
cannot be stated that in case where objections under Section 30
or 33 are not filed the Court is bound to pass decree in terms
of the award.
(b) Section 5 of Limitation Act gives discretion to the Court to
H extend the time for filing application under Section 30 or 33
U.0.1. v. MANAGER, JAIN AND ASSOCIATES [SHAH, .I.] 897
raisii1g objections to the award. A
·--r: .
(c) The Civil Procedure Code including Order IX Rule 13 is applicable
to the proceedings initiated by producing award before the
Court for passing a decree.

(d) The power of the Court to modify the award under Section 15 B
or to remit the award to the arbitrator for reconsideration under
Section 16 varies from the jurisdiction of the Court to set aside
the award under Section 30 or to determine the validity of the
arbitration agreement or an award under Section 33.
c
The result is-before pronouncing judgment, the Court has to apply its
mind to arrive at the conclusion whether there is any cause to modify or remit
the award. Further the phrase 'pronounce judgment' would itself indicate
judicial determination by reasoned order for arriving at the conclusion that
decree in terms of award be passed. One of the meaning given to the word
"Judgment" in Webster's Comprehensive Dictionary [International Edition, D
Vol. I ( 1984) reads thus : "the result of judging; the decision or conclusion
reached, as after consideration or deliberation". Further, Order XX Rule 4(2)
C. P.C. in terms provides that 'Judgment' shall contain a concise statement of
case, the points for determination, the decision thereon, and the reasons for
such decision. This is antithesis to pronouncement of non-speaking .order. E

Section 17 of the Act is, to some extent, similar to the provisions of
Order Vlll Rule 5 and/or Rule I 0 CPC. Order Vlll provides the procedure
where written statement by the defendant is not filed. Order VIII Rule 5(2)(4)
provides that where the defendant has not filed a pleading, it shall be lawful
for the court to pronounce judgment on the basis of facts contained in the F
plaint and after pronouncing the judgment a decree is required to be drawn
up in accordance with such judgment. Under Order VIII Rule IO where any
party from whom a written statement is required under Rule I or Rule 9 fails
to present the same within the time permitted or fixed by the court, the cou11
shall pronounce judgment against him or make such order in relation to the G
suit as it thinks fit and on the pronouncement of such judgment a decree shall
be drawn up. This rule gives a discretion to the Court either to pronounce
the judgment against the defendant or "make such order in relation to the suit
as it thinks fit". While interpreting Order Vlll, this Court in Ba/raj Taneia &
Another v. Sunil Madan & Another, [1999) 8 SCC 396 held that merely
because written statement is not filed the Court should not proceed to pass H
898 SUPREME COURT REPORTS (200 I) I S.C.R.

A judgment blindly and observed thus:-

"The court has not to act blindly upon the admission of a fact made
by the defendant in his written statement nor should the court proceed
to pass judgment blindly merely because a written statement has not
been filed by the defendant traversing the facts set out by the plaintiff
B in the plaint filed in the court. In a case, specially where a written
statement has not been filed by the defendant, the court should be
a little cautious in proceeding under Order 8 Rule 10 CPC. Before
passing the judgment against the defendant, it must see to it that
even if the facts set out in the plaint are treated to have been admitted,

c a judgment could possibly be passed in favour of the plaintiff without
requiring him to prove any fact mentioned in the plaint. It is a matter
of the court's satisfaction and. therefore, only on being satisfied that
there is no fact which need be proved on account of deemed admission,
the court can conveniently pass a judgment against the defendant
who has not filed the written statement."
D
Similarly, when the Court is required to proceed without objection
application under Section 30 or 33 of the Act, it can not pronounce the
judgment without considering the provisions of Sections 15 and 16 of the
Act, which provide, as stated above, for modification or correction of any
E award or for remitting it to the arbitrator for re-consideration on the ground
that (i) there is any error of law apparent on the face of the award, (ii) the
award is incapable of being executed, (iii) the award has left undetermined any
of the matters referred to arbitration, (iv) that a part of the award is upon a
matter not referred to arbitration and ( v) the award contains any obvious error.
Jurisdiction of the Court to pronounce judgment depends on exercise of its
F power to modify or remit the award.

Further, the Full Bench of the High Court arrived at the conclusion that
decree passed in terms of Section 17 of the Act where no objection has been
filed cannot be said to be an ex-parte decree because ( 1) even if both the
G parties are absent, the Court has duty to pass a decree unlike the provision
of Order IX of the CPC; (2) the Court passes the decree on the basis of award,
~-
which may not be a speaking one and no party before it is required to file
its proof in respect of its claim or defence; and (3) in a suit there is a plaintiff
and defendant and Order IX deals with them. As against this, in a proceeding
based on award, strictly neither party of an award is plaintiff or defendant and
H both of them are entitled to ask the Court to pronounce judgment according
U.0.1. v. MANAGER, JAIN AND ASSOCIATES [SHAH, .I.] 899
to the award. A
As discussed above, the distinction made by the High Court on the
ground that even if both the parties are absent, the Court has duty to pass
a decree unlike the provisions of Order IX CPC is baseless. Before pronouncing
judgment the Court is required to consider and follow the provisions of
Sections 15 and 16 of the Act. Further, once it is held that provisions of CPC B
are applicable and if the party who seeks decree in terms of the award is
absent, the Court may refuse to pass a decree. For the same reason, the
second ground given by the Court also cannot be supported because even
in case of non-speaking award the Court is required to follow mandate of
Sections 15 and 16 of the Act before pronouncing the judgment The third C
ground for holding that in case of award there is no plaintiff or defendant,
. . .....,, therefore, Order IX CPC which deals with absence of plaintiff or defendant
would not be applicable also cannot be sustained because under Section 41
of the Act the provisions ofCPC are made applicable to arbitration proceedings
before the court and to the appeals under the Act In arbitration proceedings,
there is no question of suit being filed as award is tendered for passing decree D
in .terms of the award. Similarly, Section 141 of the <:PC also contemplates
proceedings other than suit in any court of civil jurisdiction and provides that
procedure provided in the Code in regard to the suit shall be followed as far
as it can be made applicable. In such proceedings, there may not be practice
or procedure describing parties as plaintiff or defendant. Hence, in arbitration E
proceedings even if the suit is not filed, procedure provided in CPC is
applicable and there is no reason to hold that as no party is described as
plaintiff or defendant, Order IX would not be applicable. Even if the
nomenclature of plaintiff or defendant is required to be taken into consideration,
the party who seeks decree in terms of award can be held to be plaintiff and
the party who objects to such award can be treated as defendant. If the F
contention that for application of CPC there must be suit, plaint, plaintiff,
defendant or written statement is accepted, the provisions of Section 41 of
the Act and Section 141 of CPC would be nugatory.

At this stage, we would refer to some decisions, which were referred to G
by the High Court. The Court referred ~o Ganeshmal Bhawar/al v. Kesoram
Cotton Mills ltd., AIR 39 (1952) Calcutta 10, wherein the learned Single Judge
observed that inspite of Section 43 of the Arbitration Act and Section 141 of
the CPC strictly the provision of Order IX Rule 13 does not apply to
proceedings for setting aside an ex-parte decree passed under Section 17 but
the principles of Order IX Rule 13 CPC should be followed and the judgment H
900 SUPREME COURT REPORTS 1200 I I I S.C.R.

A and decree passed under Section 17 could be set aside where such decree
was passed without duly giving the notice of filing the award or without
allowing the time for applying to set aside the award to expire. In Government
of A.P. v. Bactchala Balaiah, AIR (1985) A.P. 52, the High Court considered
various decisions to the same effect and held that provision of Order IX Rule
13 will not apply to the decree passed under Section 17 of the Arbitration Act
B in terms of the award filed in the Court by the arbitrator as it cannot be treated
as ex-parte, especially when a petition under Section 30 of the Act for setting
aside the award was not filed within 30 days from the date of service of notice
of the application of the award in the Court. In case of Ram Chander v. Jamna
Shankar. AIR ( 1962) Raj. 12, the Court followed the decision of Calcutta High
C Court in Ganeshmal 's case (supra) and observed that principles of order IX
rule 13 should be followed and in any case the Court has inherent power to
correct the injustice and to set aside the judgment and decree passed ex-parte
without notice to the interested party.

In our view, as discussed above, the provisions of CPC are specifically
D made applicable and there is no reason to hold that Order IX Rule 13 would
not be applicable in case where judgment is pronounced under Section 17 of
the Act in absence of ;ibjection application tendered by the party objecting
to the award. For all purposes such decree is ex-parte for the party objecting
to the award. Under C.P.C. ex-parte decree has no technical meaning. Order
E IX Rule 6 CPC provides that where the plaintiff appears and the defendant
does not appear when the suit is called for hearing, then if it is proved that
summons was duly served, the Court may make an order that suit be heard
ex-parte. After passing such order if a decree is passed ex-parte against the
defendant, under Rule 13, the Court has power to set it aside if it is satisfied
that summons was not duly served or that defendant was prevented by any
F sufficient cause from appearing when the suit was called on for hearing.
Similarly, if party objecting to the award satisfies to the Court that for sufficient
reasons objection application was not tendered within prescribed time, Court
has power to set aside such decree. Therefore, if application for setting aside
the award is filed beyond the prescribed time and sufficient cause for
G condoning the delay in filing objection application is established, the Court
has power to set aside such decree by following the procedure prescribed
under Order IX Rule 13 CPC.

Further, large part of the controversy involved in this appeal is covered
by the decision rendered by this Court in Essar Constructions v. NP. Rama
H Krishna Reddy, [2000 l 6 sec 94. The Court observed that because of the
U.0.1. v. MANAGER, JAIN AND ASSOCIATES !SHAii, J.] 901

applicability of Section 5 of the Limitation Act, 1963, if the court has not A
pronounced judgment for whatever reason. although the time prescribed for
making the application has expired and an application for setting aside the
award is made with a prayer for condonation of delay, the court cannot
pronounce judgment until the application is rejected. The Court also observed
that even after a decree is passed under Section 17, an application under
Section 30 can be entertained provided sufficient cause is established. In B
either case, the rejection of the application would be a refusal to set aside the
award. In case where such appl.ication is rejected on the ground that it is
delayed and no sufficient cause, has been made out under Section 5 of the
Limitation Act, it would be an appealable order under Section 39(l)(vi) of the
Act. c
In the present case, before passing decree on 28th April, 1997, the
learned Advocate for the appellant prayed for extending the time for tendering
objection application under Section 30/33 of the Act. By some mistake that
being an oral prayer, as recorded in the judgment, was rejected by the Cpurt
and the decree was passed. Thereafter on 5th May, an application for setting D
aside the award and for condoning the delay for filing objections was filed
by Advocate S. Bhattacharya. The said application was accompanied by
affidavit of Bijon Kumar Ghosal, Executive Engineer, Farakka Barrage Project.
For condonation of delay, it was pointed out that Executive Engineer
approached the advocate on 17th April and gave him instructions for drafting E
the application. On 18th, 19th and 20th April, the Court was closed being
holiday, Saturday and Sunday respectively. It was also stated that appellant's
counsel started preparing the draft on 22nd April which was finalised on 29th
and was thereafter engrossed, stamped and was made ready on 2nd May. It
was tendered before the Court on 5th May. That application was prepared and
signed by Advocate Shri S. Bhattacharya. Further, appellant filed an application F
on 16th May for recalling the judgment and decree passed on 28th April in
Award Case No. 22of1997. In that application also, same reasons for condoning
delay in filing the application were mentioned and the prayer recalling the
judgment and decree and to grant leave to file the application for setting aside
the award was made. In support of that application supplementary affidavit G
was tendered on 19th May.

From the aforementioned facts, it is apparent that within period of
limitation, the Executive Engi.neer of the Department contacted the counsel on
17th April and gave him necessary instructions for filing objection application
against the award. There was delay in preparing the same by the learned H
902 SUPREME COURT REPORTS 1200 I] I S.C.R.

A counsel. It appears that the same counsel requested the Court, unfortunately
orally, that objection application was under preparation and thereafter tendered
it before the Court on 5th May. From the said averments, it is apparent that
delay in preparing and tendering the application before the Court was on the
part of the concerned advocate. This would be sufficient cause for condoning,
approximately 12 to 13 days delay in filing objections. In Essar Constructions
B (supra), this Court held-"even after a decree is passed under Section 17, an
application under Section 30 can be entr11ained provided sufficient cause is
established. In either case the rejection of the application would be a refusal
to set aside the award." This decision would be applicable to the facts of the
present case and as there was sufficient cause for condoning the delay, the
C Court ought to have set aside the ex-parte decree passed on the basis of the
award.

At this stage, we would mention that before referring the question to
the Larger Bench, the Division Bench in its judgment dated 16th December
1998 held that in the application filed under Section 33 of the Act, which was
D affirmed earlier, the appellant had prayed for condonation of delay and asked
leave to file application under Section 33 on the ground stated therein. The
Court observed that there was some procedural error in seeking leave of the
Court to file objections, but it would not warrant a rejection of the prayer. The
Court also held that there was no dispute that the case papers had been
E handed over by the appellant's representative to the counsel for drafting the
application under Section 33 on 17th April, 1997 before the expiry of the
period of limitation; after that matter was beyond the control of the appellant
until the application was prepared; delay of counsel in preparing and finalising
the draft cannot be attributed to the appellant; the application was settled by
senior counsel on 29th April 1997; thereafter it was typed; I st of May was )'
F holiday and the Court was closed. The application was accordingly affirmed
on 2nd May and therefore, the delay nas been sufficiently explained, more so ·
when the appellant is Government. The Court, therefore, held that it would
have allowed the appeal and condoned the delay in filing application under
Section 33 and consequently set aside the decree dated 28th April, 1987 but
G having regard to difference of opinion with regard to applicability of Order
IX Rule 13, the matter was referred to large,r bench. As stated above, in our
view, the Division Bench was right in arriving at the conclusion that this was
a fit case for condoning the delay and setting aside the decree dated 28th
April 1987.

H In the result, the appeal is allowed. Delay in filing the objection application
U.O.l. v. MANAGER, .JAIN AND ASSOCIATES [SHAH, .I.] 903

--..,,- under Section 30/33 of the Act is condoned. The impugned judgment and
order dated 07. I 0.1999 passed by the High Court in APOT No. 858 of 1998
is set aside and consequently the judgment and decree dated 28.4.1997 passed
A

by the learned Single Judge in Award Case No. 22 of 1997 is also quashed
and set aside. There shall be no order as to costs.

v.s.s. Appeal allowed. B