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Judgment
(1) This is an application against an order of the Sub judge Jammu dated 28.1172 rejecting the application filed by the petitioner under S. 33 of the
Arbitration Act for declaring the award to be void abinitio on various grounds. One of the grounds taken by the petitioner was that there was no
arbitration agreement at all between the applicant and the nonapplicant and even if there was one it was inadmissible in evidence as not being
properly stamped. It was also alleged by the petitioner that he had never appointed the arbitrator who bad given the award. It is therefore clear
that if these grounds are established they go to the very root of the matter and make the award void abinitio. It was not a case in which the award
was being challenged dehors as being nonexistent in the eye of law In such cases it is obvious that Art. 158 of the Limitation Act would have no
application, but the application would be governed by the residuary Article 181. I am fortified in my view by a Full Bench decision of the Delhi
High Court in Prem Sagar V. Security and Finance Ltd. AIR 1968 Delhi 21. 24 wherein Kapur J. Speaking for the Bench observed as follows :
''There is no provision in the Arbitration Act, except S. 33, conferring a right to challenge an arbitration agreement or to have the effect of such
agreement or award determined.
X X X X
Although Art. 158 of the Limitation Act prescribes a period of limitation for an application to get an award remitted for reconsideration, no such
application is expressly provided in the Arbitration Act and consequently the only application contemplated by Art. .58 must be an application
under S. 16 of the Arbitration Act.
(2) Their Lordships have clearly pointed out that this was not a case where the application was made under S 16 for challenging the award on
merits, so as to attract the application of Art. 158 of the Limitation Act. It is, therefore, manifest that the learned Subjudge has committed a serious
error of law in refusing to entertain the application filed by the petitioner for setting aside the award.
(3) The petition is therefore allowed and the order of the Sub Judge is set aside. The application under S. 33 filed by the petitioner is remitted to
the Sub Judge for fresh decision on merits in accordance with law.
(4) Parties are directed to appear before the SubJudge on 201273 failing which the Sub Judge shall proceed ex parte against the patty which does
not appear.