Banerjee, J.

1. It appears from the record that this case was referred toarbitration in the Lower Appellate Court, and a certain time was fixed withinwhich the arbitrators were required to submit their award. The next order thatwe find on the order sheet is that "a decree be drawn up in terms ofcompromise by the pleaders"; and it appears from a note at the foot of thedecree that the pleader of one of the parties objected to sign the decree onthe ground that he had no authority from his client to compromise the appeal.We further find on the record an award signed by the arbitrators; but we do notfind any petition of compromise put in by the parties after that. The award,however, bears on the back of it the following order: "Decree in terms ofthe compromise as agreed to by both parties." The decree that is drawn upis in terms of the award submitted by the arbitrators; but the order "thatthe decree be drawn up in terms of the compromise" was passed withoutgiving the parties any opportunity to raise any objection to the award.

2. It appears to us clear, therefore, that though the casewas originally referred to arbitration, yet, when the award reached the Court,it was regarded not as an award, but as a compromise by the parties; and adecree was ordered to be drawn up upon the footing of its being a compromise.

3. Against this decree and decision the defendants havepreferred this second appeal; and it is contended on their behalf, first, thatthe decree is bad, because the Appellate Court has no power to refer a case toarbitration; and, secondly, that the decree is further bad, as it is based onan award without giving the parties any opportunity to object to it; and it ispointed out in the course of the argument that there were other irregularities,such as the submission of the award long after the time allowed by the orderappointing the arbitrators, without there being any extension of time obtainedfrom Court.

4. In support of the first objection, the learned vakil forthe appellant refers to the decision of this Court in the case of Juggessur Deyv. Kritartha Moyee Dossee 12 B.L.R. 266: 21 W.R. 210; but we do not think thatthat decision applies to this case. The question whether the Appellate Courtcan refer a case to arbitration depends upon the provisions of Section 582 ofthe present Code of Civil Procedure, which is different from the provisions ofSection 37 of Act XXIII of 1861, which was the law in force when that case wasdecided. Under the old law it was provided that "the Appellate Court shallhave the same powers as the Courts of First Instance"; under the presentCode it is enacted that "the Appellate Court shall have, in appeals, thesame powers, and shall perform the same duties, as are conferred and imposed bythis Code on Courts of original jurisdiction." If the reference toarbitration on the application of parties is not a power to be exercised by theCourt, it is a duty imposed upon the Court, and under the provisions of Section532 of the Code of Civil Procedure, we think that the Appellate Court can refera case to arbitration if the parties to the appeal pray for such reference.This view is in accordance with the decision of the Madras High Court in thecase of Sangaralingum Pillai I.L.R. Mad. 78 and also with the opinion of thisCourt in the case of Bhugwan Das Marwari v. Nund Lal Sen I.L.R. Cal. 173.

5. But the second objection is, we think, valid, as therewas really no compromise in the case, and what has been treated as a compromisewas, in fact, an award submitted by the arbitrators appointed in the case. Itis necessary, therefore, that the formalities prescribed by the Act for awardsshould be strictly complied with. The appellants were therefore entitled tohave an opportunity of objecting to the award if they thought fit; and thelearned Judge below ought to have disposed of their objection before he couldorder the decree to be drawn up in terms of the award.

6. The case must therefore go back to the Lower AppellateCourt in order that the appellants may have such an opportunity. When therecord goes back to the Judge, he shall fix a day for the hearing of the casenot less than ten days from the arrival of the record in his Court; so that theparties may have an opportunity of raising any objection to the award that theymay think fit; and the learned Judge will then dispose of the objections,provided they are filed within ten days from the date of the arrival of therecord. The costs will abide the result.

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Ambica Churn Mookerjee and Ors. vs. Suresh Chunder Banerjeeand Ors. (19.05.1891 - CALHC)