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CASE NO.: Appeal (civil) 1059  of  2001

PETITIONER: UNION OF INDIA AND OTHERS

       Vs.

RESPONDENT: MANAGER M/S JAIN AND ASSOCIATES

DATE OF JUDGMENT:       06/02/2001

BENCH: M B Shah. & S.N. Phukan.

JUDGMENT:

Shah, J.

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   Question  involved in this appeal iswhether  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  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  the parties to the present appeal 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 passed an  award on dated 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  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 for setting aside the  award

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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  appeal.   The  Division  Bench  in  view  of conflicting  judgments  referred  the  questionwhether  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 meaning of Order  IX  Rule  13 CPCto the Full Bench?  The Full Bench by judgment and order dated  7.10.1999 dismissed the appeal by holding that:  - We are of the opinion that (1) 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 either  under Section  30 or 33 of the Act or both;  (3) as in the instant case  no  such application has been filed, the  question  of setting aside 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  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  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

   (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,  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 power which may be vested in an arbitrator 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:  -

   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

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of civil jurisdiction.

   [Explanation.In    this    section,    the   expression proceedings  includes proceedings under Order IX, but does not  include  any  proceeding  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  the arbitrator,  the  provisions of the CPC are  applicable  and there  is no provision which excludes operation of Order IX. Similarly,  in view of Section 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 proceedings under Order IX CPC.

   Other  provision  which  is required to  be  taken  into consideration  is  Section  5 of the Limitation  Act,  1963, which inter alia 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 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.  It  requires no  further discussion that on sufficient cause being shown, if  there 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:  -

   15.        Power of Court to modify award.(1) 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  other  part and does  not  affect  the decision on the matter referred;  or

   (b)  where  the award is imperfect in form, or  contains any  obvious  error which can be amended  without  affecting such decision;  or

   (c)  where  the award contains a clerical mistake or  an error arising from an accidental slip or omission.

                                       (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

   (a)  where  the award has left undetermined any  of  the matters  referred to arbitration, or where it determines any

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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;  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  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.  (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)

   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 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 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  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  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 set down the application for hearing  on other  evidence  also,  and  it 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 award rule of the Court on the ground  that (i)  part  of  the award is upon a matter  not  referred  to

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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) the award is so indefinite as to  be incapable  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 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  extend  the  time for  filing  application  under Section 30 or 33 raising objections to the award.

   (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  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.

   The result isbefore 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  Websters Comprehensive  Dictionary  [International Edition,  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.

   Section 17 of the Act is, to some extent, similar to the provisions  of Order VIII Rule 5 and/or Rule 10 CPC.   Order VIII  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 plaint and after pronouncing  the judgment  a decree is required to be drawn up in  accordance with  such  judgment.   Under Order VIII Rule 10  where  any party from whom a written statement is required under Rule 1 or  Rule  9  fails  to  present the  same  within  the  time permitted  or fixed by the court, the court shall  pronounce judgment  against him or make such order in relation to  the 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

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suit as it thinks fit.  While interpreting Order VIII, this Court  in Balraj Taneja & 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 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  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, 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 courts 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.

   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 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 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 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 both of  them are entitled to ask the Court to pronounce judgment according to the award.  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  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

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and  16  of  the Act before pronouncing the  judgment.   The third  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 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  tendered  for passing  decree  in terms of the award.  Similarly,  Section 141 of the CPC 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  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 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 by the High Court.  The Court referred  to@@                JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Ganeshmal Bhawarlal v.  Kesoram Cotton Mills Ltd.  [AIR (39)@@ JJJJJJJJJJJJJJJJJJJJJJ 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 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  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  Court  in Ganeshmals  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 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

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absence  of  objection  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 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  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 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.  N.P.  Rama Krishna Reddy [(2000)  6 SCC   94].   The  Court  observed   that  because   of   the applicability  of Section 5 of the Limitation Act, 1963,  if the  court has not 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 either  case,  the rejection of the application would  be  a refusal  to  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 of the Limitation  Act,  it  would  be an  appealable  order  under Section 39(1)(vi) of the Act.

   In  the  present  case, before passing  decree  on  28th April,  1997, the learned Advocate for the appellant  prayed@@                   JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ for  extending the time for tendering objection  application@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJ under  Section 30/33 of the Act.  By some mistake that being an oral prayer, as recorded in the judgment, was rejected by the Court and the decree was passed.  Thereafter on 5th May, an application for setting 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   the application.   On  18th, 19th and 20th April, the Court  was closed  being holiday, Saturday and Sunday respectively.  It was  also stated that appellants 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.

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Bhattacharya.   Further,  appellant filed an application  on 16th  May  for recalling the judgment and decree  passed  on 28th April in Award Case No.22 of 1997.  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  was tendered on 19th May.

   From  the  aforementioned  facts, it  is  apparent  that within  period of limitation, the Executive Engineer 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  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 (supra),  this  Court heldeven  after  a decree is passed under Section  17,  an application  under  Section 30 can be  entertained  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 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 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 handed over by the appellants  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;  1st of May was holiday and the  Court  was  closed.  The  application  was  accordingly affirmed  on  2nd  May  and therefore, the  delay  has  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  having  regard   to difference  of opinion with regard to applicability of Order IX  Rule  13, the matter was referred to larger  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.

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   In  the result, the appeal is allowed.  Delay in  filing the  objection application under Section 30/33 of the Act is condoned.   The impugned judgment and order dated 07.10.1999 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  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.