JUDGMENT Randhir Singh, J.
1. This is an appeal under Section 39 of the Indian Arbitration Act against the order of the Civil Judge, Hardoi, dismissing the objections of the appellant to the award and making it a rule of the Court.
2. It appears that the applicant and opposite parties Nos. 1 and 2 were the sons of one Ajodhia Prasad, and Smt. Rajrani Devi, opposite party No. 3, was the widow of Ajodhia Prasad. Ajodhia Prasad was possessed of moveable and immoveable property which passed to his three sons and his widow on the death of Ajodhia Prasad. Shortly after the death of Ajodhia Prasad, however, disputes arose with regard to the joint property and the parties ultimately appointed one Sri Mohan Lal, Advocate, Hardoi, who was a cousin of Ajodhia Prasad, as arbitrator, and ant agreement was executed on the 11th August, 1940.
Thereafter Sri Mohan Lal, Advocate, entered upon the reference and meetings were held from time to time, extending over several years, which were attended by the parties. No award was, however, made for quite a number of years till on the 12th December, 1949, a notice was served by the appellant upon Sri Mohan Lal asking him not to proceed with the arbitration and intimating that he would not be bound toy the award made thereafter. Sri Mohan Lal, however, proceeded with the writing of the award and made an award on the 24th October, 1950, which, was duly registered in the office of the Sub-Registrar.
An application for filing the award was made on the 17th April, 1951, and objections to the award were filed by the appellant on the 4th July, 1951. A reply to the objections was filed by the opposite parties on the 26th October, 1952. Before the reply was filed, however, an application was made by the opposite parties for extension of time for making the award. The Court extended the time for filing the award and heard the objections. It however, came to the conclusion that the objections had no force and dismissed them. The award was then made a rule of the Court, The appellant has come up in appeal.
3. The two points which have been urged on behalf of the appellant by his teamed Counsel, Sri S. C. Das, are that the Court was not competent or justified in extending the time for the filing of the award after the award had been filed and that the arbitrator was guilty of misconduct inasmuch as he had not given a share to the appellant in the house property belonging to Ajodhia Prasad and also had not relied on documentary evidence.
4. As regards the first point, the relevant part of Section 28 of the Arbitration Act is as follows :
28 (1) "Court may, if it thinks fit. whether the time for making the award has expired or not and whether the award has been made or not, enlarge from time to time the time for making the award."
An examination of the language of Section 28 clearly indicates that extension of time could be made even after the award had been filed. It has been urged that Section 28 is applicable only to references made through Court and does not, apply to agreements for reference to arbitration made out to Court. Sub-section (2) of Section 28 of the Indian Arbitration Act, however, indicates that this Section is applicable also to agreements made out of Court.
Reliance has also been placed on Rule 3 of Schedule I of the Arbitration Act in which the limitation for filing the award has been prescribed in cases where the reference to arbitration does not fix any time. We are, however, of opinion that Schedule I, Rule 3 has to fee read with Section 28 of the Indian Arbitration Act. A case on similar facts is to be found in Radha Kishen v. Madho Krishna, AIR 1952 All 856 (A).
In the aforesaid Division Bench case the facts were almost the same as in the present case and it was held that Section 28 of the Indian Arbitration Act has general application and as such applies both to reference made through Court or outside the Court, in view of this decision of this Court, with which we respectfully agree, there appears to toe no force in the contention raised on behalf of the appellant that the Court was not competent to extend the time for filing the award.
5. The second contention of the learned Counsel, as mentioned above, was that the arbitrator had been guilty of legal misconduct inasmuch no share had been allotted to the appellant in the houses of Ajodhia Prasad. It is not open to a Court to go into the grounds which were taken into consideration by the arbitrator in partitioning the property. It is always open to an arbitrator to compensate one party by awarding him compensation if he finds that immoveable property cannot be properly divided without inconvenience to them. If the arbitrator had the right to award compensation in lieu of property his conduct cannot be said to be illegal nor does such a course of conduct amount to illegal misconduct. There is thus no force in this contention also.
6. AS regards the delay in making the award the appellant had stated that he did not attend the arbitration proceedings after November, 1940, but we find from the resistor of proceedings filed by the arbitrator that the appellant had been attending the proceedings almost throughout and had received compensation from time to time in respect of unequal quotas given to the parties. The statement made by the appellant in the Court below that he did not attend the arbitration proceedings after November, 1940, was therefore untrue.
7. Taking the entire circumstances into consideration we find no substance in this appeal and dismiss it. We, however, make no order as to costs,