Sudhi Ranjan Das, J.

1. In this application, Mrs. Aisha Ariff prays for thefollowing reliefs: (1) A declaration that the alleged award published by AmeerAli J. as umpire on 8th August 1944 and signed on 3rd September 1944 was and isalleged, invalid and of no effect. (2) A declaration that there was nosubmission or arbitration agreement and that the umpire had no jurisdiction toact as such umpire. (3) That if necessary the said award be set aside or takenoff the file. (4) That an injunction be passed restraining the other parties tothe said award from enforcing or acting on the same and from having any decreepassed thereon.

2. Before dealing with the points which require to beconsidered in this application, it is necessary to notice the facts andcircumstances giving rise to the several suits and proceedings with which thisapplication is concerned and also the very peculiar course of procedure whichthey have taken.

3. One Golam Hossain Cassim Ariff and Ibrahim, his son byhis pre-deceased first wife, used to carry on a business in partnership underthe name and style of Hassim Ariff Brothers and Company. This firm was themanaging agent of Bengal Silk Mills Co. Ltd., a private limited company. Thecapital of this company is divided into 400 shares out of which the said GolamHossain Cassim Ariff owned 68 shares. It is alleged by the applicant but deniedby the respondent company that the said Golam Hossain Cassim Ariff from time totime advanced large sums to the respondent company to help it in its financialdifficulties and that the respondent company acknowledged such sums as payableby it to Golam Hossain Cassim Ariff. In its balance sheet for the year ending30th November 1936 passed by the shareholders of the respondent company on 8thJuly 1937 the respondent company acknowledged its indebtedness to Golam HossainCassim Ariff in the sum of Rs. 2,77,010-10-7.

4. On 1st January 1937, Golam Hossain Cassini Ariff diedleaving him surviving Ibrahim his son by his predeceased first wife, theapplicant Aisha Ariff his second wife and Ismail, Ahmed and Azam his 3 sons byhis said second wife, the two last named sons being then and still minors.Prior to his death, Golam Hossain Cassim Ariff made and published his willdirecting that his estate should be distributed amongst his heirs according toMahomedan law. On 2nd August 1939 probate of this will was issued to IbrahimIsmail and Aisha Ariff the executors and executrix named in the will.

5. It is said that after the death of Golam Hossain CassimAriff the company paid Rs. 17,149-14-10 to his creditors out of the amount dueto him. It is also alleged that after the death of Golam Hossain Cassim Ariff,Ibrahim continued the firm of Hassain Ariff Brothers and company and managedthe mills of the respondent company.

6. On 21st December 1939, Ismail and Aisha Ariffrepresenting the estate of Golam Hossian Cassim Ariff filed in this Court SuitNo. 2261 of 1939 against the Bengal Silk Mills Co., Ltd., for the recovery ofRs. 2,77,010-10-7 with interest thereon. As Ibrahim did not join as plaintiff,he was impleaded as a defendant in that suit. The respondent company filed itswritten statement denying all liability. Ibrahim did not enter appearance inthat suit.

7. On 2nd January 1940, Bengal Silk Mills Co. Ltd., filedSuit No. 1 of 1940 in this Court against Aisha Ariff, Ismail and Ibrahim asrepresenting the estate of Golam Hossain Cassim Ariff for recovery of Rs. 6lacs and accounts. Aisha Ariff and Ismail filed their written statement denyingliability. Ibrahim did not enter appearance in this suit also.

8. On 2nd January 1940, Ismail and Aisha Ariff as executorand executrix filed Suit No. 4, of 1940 in this Court against Sulaiman CassimAriff and Yusuff Cassim Ariff as the mutwallis of the wakf created in 1895 byHazi Kassim Ariff to recover Rs. 19,093 for moneys alleged to have been lentand advanced by Golam Hoasain Cassim Ariff to the said wakf estate. Ibrahim whodeclined to join as plaintiff was made a defendant in this suit also.

9. On 26th October 1940, Ibrahim died leaving his widowDorothy Jane Ariff and two daughters Amina and Zamina.

10. On 12th February 1941, Dorothy Jane Ariff the widow ofIbrahim filed in this Court suit No. 213 of 1941 against the heirs of GolamHossain Cassim Ariff and those of Ibrahim for the administration of the estateof Golam Hossain Cassim Ariff and of the estate of Ibrahim, By an order made inthis suit Mr. S.K. Sawday was appointed receiver of the whole estate of GolamHossain Cassim Ariff.

11. On 17th March 1941, the parties to the said two suitsNo. 22661 of 1939 and No. 1 of 1940 entered into a written agreement wherebythey agreed to refer the disputes in the said two suits to the arbitration ofMr. J.N. Basu and Haji Mahomed Ismail Ariff who were to make their award withina month. It was also agreed that in case of difference of opinion in any matteror in case they left any matter undecided, such matter would be referred toAmeer Ali J. as umpire.

12. By an order made on 18th March 1941, the two suits, No.2261 of 1939 and No. 1 of 1940 were consolidated and the matters in disputetherein were referred to the arbitration of Mr. J.N. Basu and Haji Saheb whowere by that order directed to make their award within 2 months.

13 There was a separate agreement in writing between theparties to Suit No. 4 of 1940, for reference of the disputes in that suit tothe arbitration of the same persons on terms similar to those of the agreementrelating to Suits No. 2261 of 1939 and No. 1 of 1940. By an order made in thatsuit No. 4 of 1940, the disputes therein were referred to the arbitration ofMr. J.N. Basu and Haji Saheb.

14. Three points are to be noted namely: (i) that there weretwo separate arbitration agreements and two separate orders, one in theconsolidated suits No. 2261 of 1939 and No. 1 of 1940 and the other in suit No.4 of 1940; (ii) that neither of the two orders of reference made any provisionfor reference of any matter to Ameer Ali J. as umpire; and (iii) that there wasno arbitration agreement or order for reference to arbitration of any disputein Suit No. 213 of 1941.

15. Mr. J.N. Basu could not act as arbitrator on account ofhis ill-health and accordingly by an order made by this Court in theconsolidated suits on 5th March 1942, Sir Nazimuddin was appointed asarbitrator in the place of Mr. J.N. Basu and the time for making the award wasextended to 31st May 1942. By another order made on 1st June 1942, the time formaking the award was further extended to 31st August 1942. I take it, althoughI am not quite clear about it, that similar orders were made in Suit No. 4 of1940.

16. Between May and July 1942 the arbitrators held severalsittings and examined certain books of account.

17. On 5th August 1942, Haji Saheb made an award statingthat the arbitrators had disagreed and that in his opinion the claims of bothparties in the Consolidated Suits Nos. 2261 of 1939 and 1 of 1940 should bedismissed. As regards the claim in Suit No. 4 of 1940, Haji Saheb was ofopinion that it should not be allowed as it exceeded the income of the wakfestate, and also stated that the parties had agreed that that suit should hedismissed It does not appear that Haji Saheb made any separate award inconnection with the last mentioned suit.

18. This award is said to have been submitted to Ameer AliJ., at or about the time it had been made and was sent to Messrs. B.N. Basu& Co., Solicitors for Ismail and Aisha Ariff for being filed in Court. On26th August 1942, Messrs B.N. Basu & Co., wrote a letter to Mr. S.K.Banerjee one of the Assistant Registrars of this Court submitting that as thearbitrators had differed it was not necessary to file the award of anyarbitrator and that the matters in difference would have to be decided by AmeerAli J. and his award only was to be filed. The letter concluded with a requestto the Assistant Registrar to place the letter before the learned Judge for hisdirections. The award or report of Haji Saheb was returned to the AssistantRegistrar. No direction appears to have been given on this letter.

19. After about a year, to wit on 17th July 1943, SirNazimuddin made an award stating that the arbitrators had differed and that inhis opinion Bengal Silk Mills Co., Ltd., should pay to the estate of GolamHossain Cassim Ariff the sum of rupees two lacs, with interest thereon at 6%per annum from the date of the award in respect of the claim in Suits Nos. 2261of 1939 and 1 of 1940. He did not in this award refer to Suit No. 4 of 1940 ormake any separate award in respect of the claim in that suit.

20. In sub-paragraph (c) of paragraph 14 of the affidavit inopposition affirmed by Yussuf Cassim Ariff, one of the Directors of Bengal SilkMills Co., Ltd., it is alleged that

Mr. S.K. Sawday, receiver acting on behalf of thepetitioner, submitted a note for the consideration of the umpire in respect ofthe report by the two arbitrators and notified to the parties to appear beforethe umpire on the 20th at 10 a.m.

The applicant and Ismail deny that Mr. Sawday had anyauthority to act on their behalf. It does not appear when Mr. Sawday submittedhis note or who directed him to submit the note or give notice to the partiesor on the 20th of which month the parties were required to attend before theumpire. Aisha Ariff and Ismail deny having received any notice either from theumpire or from Mr. Sawday.

21. Nothing appears to have happened for over a year anduntil 2nd August 1944, when the three Suits Nos. 2261 of 1939, 1 of 1940 andNo. 4 of 1940 appeared in the daily list of Ameer Ali J. The Court minutes ofthat day relating to these suits are to the following effect:

Mr. J.C. Gupta with Mr. M.S. Salehji appears for the BengalSilk Mills. Mr. S.K. Sawday appears as the Receiver to the estate of G.H.C,Ariff. The Court: All the three matters to appear in the list on Friday next atthe top of the list.

22. Pursuant to the above directions the three suitsappeared in the list on Friday, 4th August 1944, but do not appear to have beenreached. The three suits next appeared in the fist on 8th August 1944. Theproceedings of that date were recorded in the Court minutes as follows:

The counsel for the parties appear as before. The Courtdictates a comprehensive judgment and decree covering all the four matters.(See S.H Notes of Mr. Sinha).

23. On 14th August 1944, Messrs. B.N. Basu & Co.,attorneys for the applicant put in a requisition for the drawing up of thedecree.

24. On 3rd September 1944, Ameer Ali J., did two things, namelyhe signed the transcript copy of the "judgment" delivered on 8thAugust 1944, and also an award.

25. On 11th November 1944, a draft of the decree was issuedfrom the Court offices. This draft was instituted in the three suits Nos. 2261of 1939, 1 of 1940 and 4 of 1940, and Appeal No. 484 of 1940 This appeal No.484 of 1940 arose out of a suit for rent filed by the Bengal Silk Mills Co.,Ltd., against the estate of Golam Hossain Cassim Ariff and was pending on theappellate side of this Court. The draft recited the order of reference, theorder appointing Sir Nazimuddin as arbitrator in the place of Mr. J.N. Basu,the fact of the difference of opinion between the arbitrators and the referenceof the matters in dispute to the umpire, the award made by the umpire and thenproceeded to state that the three suits and the appeal came on for judgment onthe said award before Ameer Ali J., and that it was declared that the saidaward ought to be carried into effect and the same was ordered and decreedaccordingly.

26. On 14th November 1944 the settlement of the draft decreewas adjourned. On 18th November 1944, Messrs. B.N. Basu & Co. returned thedraft with certain alterations and a marginal note to the following effect:

There was no bearing. The award has not been filed and therewas no judgment on award. The question is whether this decree can be drawn up.

27. On 22nd November 1944, a representative of Messrs B.N.Basu & Co. appeared before the Master and intimated that the attorneys hadbeen misled into putting in a requisition for drawing up of the decree and thatthey did not desire any decree to be drawn up. The Master adjourned the mattersine die with the following remarks:

Messrs B.N. Basu & Co., who gave requisition for drawingup of the decree say that they were misled and in their view no decree was madeand that they do not want the decree to be drawn up. No other party is present.Adjourned sine die at the instance of Messrs. B.N. Basu & Co.

28. On 22nd November 1944, Messrs B.N. Basu & Co., actingfor Aisha Ariff issued the present notice of motion intimating that on 29thNovember 1944 an application would be made on behalf of Mrs. Aisha Ariff forcertain orders the material clauses of which I have already mentioned. Thisnotice of motion appears from the acknowledgments endorsed on the back thereofand the affidavit of service, to have been served on the same date.

29. I am told by Learned Counsel for the applicant, that on23rd November 1944, the applicants solicitors gave a requisition for thefiling of the award in Court. On the same day, the petition affirmed on theprevious date was filed in Court by Learned Counsel and an interim order wasmade by me in terms of prayer 4 of the petition which I have already set outabove.

30. On 25th November 1944, both the judgment" and theaward were filed on record in the Court-office.

31. On the returnable date, i.e., on 29th November 1944directions were given for the filing of the affidavit in opposition and theaffidavit in reply and the application was adjourned for a fortnight. Afteranother adjournment the application appeared in my List on 2nd January 1945.When the application was called on for the first time on that date no oneappeared and it was passed over. When it was called on for the second timeLearned Counsel for the applicant and that for the supporting respondentsappeared, but no one appeared for the contesting respondent, Bengal Silk MillsCo., Ltd. The application was consequently heard ex parte. After hearingLearned Counsel in support of the application I made an order setting aside theimpugned award for reasons stated in a short judgment that I delivered on thatday. On the next day, the application was mentioned before me and by consent ofparties the order that I had made was, upon certain terms as to payment ofcosts, recalled and the application was restored to the list for re-hearing.

32. I have now had the advantage of hearing elaborate andindeed very able and lucid arguments of Learned Counsel appearing for all parties.Nothing that I have heard, however, induces me to change my previous opinionthat what had been done by Ameer Ali J., on 8th August 1944 and 3rd September1944, cannot be supported as an award of an umpire. The reasons, some of whichI adverted to in my previous judgment and each of which in my opinion issufficient to vitiate the award, may be shortly stated as follows: (1) Therewas no order of Court referring any dispute in any of the suits to Ameer Ali J.as umpire. (2) An award made by Ameer Ali J. under the written arbitrationagreement deciding the disputes forming the subject-matter of several pendingsuits without an order of reference by Court cannot be given effect to or actedupon either under O. 23, R. 3, Civil P.C., or under the Arbitration Act. (SeeDekari Tea Co. Ltd. v. The India General Steam Navigation Co. Ltd., 25 C.W.N.127 : (A.I.R. 1921 Cal. 238) followed in Amar Chand Chamaria v. Banwari LalRakshit, : 49 Cal. 608 [LQ/CalHC/1921/343] : (A.I.R. 1922 Cal. 404) [LQ/CalHC/1921/343] . (3) The timelimited by the agreements or by the orders of Court or under the ArbitrationAct for the making of the award by the umpire had expired long before 8thAugust 1944. (4) No notice appears to have been given by the umpire to theapplicant or her sons and certainly no such notice as would entitle him toproceed ex parte. There is nothing to show that Mr. S.K. Sawday had anyauthority to represent the applicant or her sons. The mere fact that Mr. Sawdayhad been appointed receiver in Suit No. 213 of 1941 and might have championedher cause in that suit does not vest in him any authority to represent theapplicant or her sons before the umpire dealing with disputes in quitedifferent suits. According to the minutes, this Sawday appeared only as thereceiver. (5) The umpire has purported to decide matters which had not beenreferred to arbitration either by the arbitration agreement or by the orders ofreference, e.g., the disputes in the rent appeal No. 484 of 1940. It isdifficult to estimate how his views on the disputes in that matter affected hisviews on the disputes in the other matters and to sever the award by acceptingone part and rejecting the other. (6) There being separate suits, separatearbitration agreements and separate orders of reference by Court, it was irregularfor the umpire to make one single consolidated award. (See Hellaby v. Brown,(1857) 1 H. & N. 729 : (5 W.R. 490).)

33. When I put some of the above reasons before the LearnedCounsel for the company he very frankly conceded that it was difficult for himto support what Ameer Ali J. had done as an award of an umpire. His mainargument was directed to impugn the maintainability of the present applicationand was based on two separate grounds which it is now necessary for me toconsider.

34. The first ground is that the decision of Ameer Ali J.was not an award, although it might be in the nature of an award. Great stressis laid on the opening sentence of the observations made by the learned Judgeon 8th August 1944, which has been referred to as "judgment" andwhich was to the following effect:

This matter has been left to me by the parties appearing formy final decision as a judge as it was originally left to me as umpire.

This observation, it is said, clearly indicates that thematter was left to Ameer Ali J. as a Judge and that his decision, although hedid not hear evidence or proceed in a formal way, was a judgment and not anaward. The applicant understood it as a judgment, for, through her solicitors,she gave a requisition for the drawing up of a decree. The argument is that theparties agreed to accept the Judges decision as final and thereby constitutedthe Judge a quasi-arbitrator. The effect of such an agreement, it is urged, isto take the proceedings out of the ordinary course of procedure and to convertthem into proceedings extra cursum curiae. The decision, given by the Judge insuch circumstances, is not an award but is yet final and is unappealable andcannot be questioned in any way. Reliance is placed, in support of this argument,on the well-known cases of Harrison v. Wright, (1845) 13 M. & W. 816 : 153E.R. 342, James White v. Duke of Bucclenct, (1866) L.R. 1 H.L. (SC) 70, Burgessv. Morton, (1896) A.C. 136 : (65 L.J.Q.B. 321). Reference is made to theobservations of Lord Halsbury L.C., at p. 138 of the report of the lastmentioned case which is to the following effect:

My Lords, it bas been held in this House that where with theacquiescence of both parties a Judge departs from the ordinary course ofprocedure and, as in this case, decides upon a question of fact, it isincompetent for the parties afterwards to assume that they have then analternative mode of proceeding and to treat the matter as if it had been beardin due course.

To the like effect are the following observations of LordWatson at p. 141:

There are several decisions of this House, in cases comingfrom Scotland, which appear to me to affirm that the judgment of a Court below,pronounced extra cursum curica, is in the nature of an arbiters award, andthat, as a general rule at least, no appeal from it will lie.

My attention has also been drawn to several decisions of theCourts in India, namely, Chinna Venkatasami Naicken v. Venkatasami Naicken, 42Mad. 625 : (A.I.R. 1920 Mad. 800); Madan Mohon v. Munnalal, :A.I.R. 1928 All. 497 : (115 I.C. 644) and Naushed Ali v. Mahammed Ishaq,: A.I.R. 1937 Oudh 224 : (13 Luck. 152).

35. Three can be no question about the soundness of theprinciples enunciated in the decisions mentioned above. The question is whetherthose principles are applicable to the facts and circumstances of the case nowbefore me. It is necessary to examine the facts a little more closely. I havealready referred to the two arbitration agreements, to the two orders and thetwo dissentient awards of the two arbitrators. Nothing further appears, on thematerials before me, to have taken place until 26th August 1942 when B.N. Basu& Co. wrote a letter to the Assistant Registrar submitting that Ameer AliJ. should be requested to make his award. Again, there appears to be a hiatusfor 2 years until 2nd August 1944, when the suits appeared in the daily list ofAmeer Ali J. on 8th August 1944. Ameer Ali J. delivered what has been calledhis judgment. I have set out above the minutes of proceedings of those dates.In his "judgment" the learned Judge, after making the openingobservation which I have quoted, proceeded to consider the two awards orreports and concluded as follows:

In other words, it seems to me that the result arrived at bythe Haji Saheb and based on data and reasons which be has set out is proper andit is also my conclusion.

Then the learned Judge mentioned the conclusions seriatim.On 3rd September 1944 the learned Judge signed this "judgment" aswell as an award. The award is intituled, in the matter of Arbitration Act,1940 and in the matter of Suits Nos. 2261 of 1939, 1 of 1940, 4 of 1940 andappeal No. 484 of 1940." The recitals in this award clearly indicate thatAmeer Ali J. was acting as umpire. I cannot think that at least on 3rdSeptember 1944, when he signed the "judgment" and the award thelearned judge purported to act in two separate capacities. It is unreasonableto treat the two things as separate. In my judgment the two things must betaken together. In the facts and circumstances of these cases I am constrainedto hold that Ameer Ali J. acted as umpire and published his award orally on 8thAugust 1944, and drew up the formal award in writing on 3rd September 1944. Iregard the "judgment" of 8th August 1944, as reasons given by AmeerAli J. for his award and the award signed on 3rd September 1944 as the formalexpression of the conclusions arrived at by him as the umpire.

36. The difficulties in the way of the company inestablishing that Ameer Ali J. acted as a Judge are many and some of them maybe stated as follows: (a) The case sought to be made by Learned Counsel is notmade out in his clients affidavit. Indeed the affidavit proceeds on the basisthat Ameer Ali J. was the umpire, acted as such and made an award. The companycannot be permitted to make a case which is inconsistent with the case in theaffidavit. (b) That the reference to arbitration not having been formallysuperseded, Ameer Ali J. had no jurisdiction to deal with and determine thesuits as Judge. (c) The procedure extra cursum curiae does not appear to haveever been applied to proceedings not pending before the particular Court, theJudge of which is constituted the quarsi-arbitrator. The Rent Appeal No. 484 of1940 was pending before the appellate side of this Court and the party couldnot possibly, by their own agreement alone, authorise Ameer Ali J to act as aJudge in disposing of that appeal extra cursum curiae or otherwise. (d) In theopening sentence of the "judgment" it is stated that the matter hadbeen left to the decision of Ameer Ali J. as a Judge by "the partiesappearing". From the Court minutes which I have quoted in extenso it doesnot appear that the applicant or her sons appeared on those dates. (e) Under theOriginal Side Rules, the parties having attorneys on record cannot appear inperson or by an agent except the attorneys or advocate briefed by theattorneys. Mr. S.K. Sawday does not appear to be entitled to plead on theoriginal side as advocate nor does he appear to have been briefed by theattorneys. He cannot be said to be an "authorised agent" within themeaning of the Code of Civil Procedure. Indeed he appeared only as receiver.

37. For reasons stated above, I am bound to hold Ameer AliJ. acted as umpire and made an award for reasons stated in what has been calledthe "judgment" delivered on 8th August 1944, and signed on 3rdSeptember 1944, along with the formal award in writing. He proceeded on thefooting and assumption of a subsisting umpirage. Having regard to all thecircumstances I cannot hold that all the parties agreed to constitute thelearned Judge a quasi-arbitrator with power to proceed extra cursum curiae withsuits and proceedings, one of which, at any rate, was not pending before him.In my judgment, the decision of Ameer Ali J cannot he regarded as anything butwhat it purports to be, namely, an award of an umpire. I have already heldthat, as an award, this decision cannot, for reasons already stated, bepossibly sustained.

38. The second ground urged by Learned Counsel for therespondent company is that assuming that the decision of Ameer Ali J. is anaward, this application is premature inasmuch as the award had not been filedin Court at the date of this application. In support of this contentionreliance is placed on the cases of Rantanji Virpal & Co. v. DhirajlalManilal, : I.L.R. (1942) Bom. 452 [LQ/BomHC/1941/134] : (A.I.R. 1942 Bom. 101) [LQ/BomHC/1941/134] and Bengal Jute Mills Co. Ltd. v. Jewraj Heeralal,: I.L.R.(1943) 2 Cal. 392 : (A.I.R. 1944 Cal. 304) [LQ/CalHC/1943/37] , In my opinion, these cases aredistinguishable.

39. In the first place in both those cases the award had notbeen filed in Court at all, even upto the dates when the cases were disposedof. In the case before me, the applicant through her attorneys issued a noticeof motion on 22nd November 1944, intimating that an application will be made on29th November 1944. It has been recently re-affirmed by the Court on appeal inSrichand Daga v. Sohanlal Daga, : 47 C.W.N. 450 : (A.I.R.1943 Cal. 257) [LQ/CalHC/1943/26] , that the taking out of a notice of motion is not the making ofan application but is a mere warning that an application will be made on afuture date named in the notice. In this case the date fixed for the making of theapplication was 29th November 1944. The award had been actually filed in Courton 25th November 1944, i.e., before the date of the application. If the matterrested here, then the two cases cited by Learned Counsel would be of noassistance to his client. The petition, however, is complicated by the factthat on 23rd November 1944, Learned Counsel for the applicant filed thepetition in Court and obtained an interim in-junction. No order could be madeby the Court unless an application had been made to it. Therefore, it must beheld that an application was made to the Court on 23rd November 1944, beforethe award had been filed in Court. But this limited application was in aid ofthe main future application about which the applicant had on 22nd November 1944,given warning and the making of which she had by the notice fixed for 29thNovember 1944. This limited application was not for setting aside the award butfor an interim injunction pending the proposed application for setting asidethe award. This limited application does not appear to me to be hit by thedecisions in the two cases I have been referred to.

40. In the second place the main application, in so far asit prays for a declaration that there was no submission or arbitrationagreement and that the umpire had no jurisdiction to act as such umpire wasclearly maintainable even if the award had not been filed. Indeed Chagla J. atpp 453-454 of the report of the Bombay case observed as follows:

It is clear that under sub-s. (2) the phrase the Court inwhich the award under the arbitration agreement may be filed has referenceonly to proceedings in connection with the arbitration agreement. If a questionarises with regard to the validity, effect or existence of an arbitrationagreement, then the question has got to be decided by the Court in which theaward which may result from that arbitration agreement may be filed. If thequestion is with regard to the award itself, then the question has got to bedetermined by the Court in which the award has been filed.

The prayer to which I have referred and which is set out incl. (2) of the notice of motion raises a question as to the validity, effect orexistence of the arbitration agreement and can therefore be sought for in anapplication to this Court where the award may be filed even though the awardhad not been actually filed at the date of the application. Even assuming thatthe main application for setting aside the award is to be deemed to have beenmade on 23rd November 1944, when the interim injunction was issued, must it bedismissed on the ground that the award had not been filed prior theretoalthough the award had, in fact, been filed two days later on but before thedisposal of the application It is argued by Learned Counsel for the respondentcompany, on the analogy of the principle that the cause of action in a suitmust be antecedent to the institution of the suit, that the cause of action foran application to set aside the award must be antecedent to the making of theapplication and that there is no cause of action for setting aside an awarduntil the award has been filed in Court. I do not agree that the filing of theaward is any part of the cause of action for setting aside the award. Thegrounds for setting aside an award are set out in S. 80, Arbitration Act. Assoon as the conditions there laid down are fulfilled, the cause of action forsetting aside the award is complete. Is the actual filing of the award in Courtwhich has undoubtedly been held in the two decisions cited above, to benecessary for maintaining an application for setting aside the award to be alsoregarded as a condition precedent, the non-fulfilment of which cannot be curedby subsequent filing of the award Is it a condition precedent like leave underCl. 12, Letters Patent, which must be obtained before the institution of thesuit or is it a mere condition like leave to sue a receiver or leave under O.2, R. 2 or O. 2 R. 4 which may be obtained at any time before judgment I donot see why the defect due to the non-filing of the award at the date of theapplication cannot be cured by the filing thereof before the disposal of theapplication.

41. In many cases events happen after the institution of asuit or proceeding bringing about a change of circumstances and to shortenlitigation or to do complete justice between parties it becomes incumbent uponthe Court to take notice of these subsequent events and to mould its decisionaccording to the circumstances as they stand at the time the decree or order ismade (See Nurimian v. Ambica, 44 Cal. 47 [LQ/CalHC/1916/186] at p. 55 : (A.I.R. 1917 Cal. 716). Theaward having now been actually filed in this Court, this Court has become theonly Court which under S. 31, Arbitration Act, 1940, has jurisdiction to decideall questions regarding the validity, effect or existence of the award or thearbitration agreement under which the award has been made. It will serve nouseful purpose it I dismiss the application today for want of jurisdiction dueto non-filing of the award before the date of the application, for theapplicant will be entitled to bring on another application on the same groundsimmediately after such dismissal. Such a course will only involve multiplicityof proceedings and unnecessary costs. In my judgment the filing of the award on25th November 1944, immediately cured the defect in the jurisdiction of thisCourt to entertain the application.

42. In certain cases judgments and orders are directed to beentered nunc pro tunc (See R.S.C.O. 52, R. 15). In Toronto Railway v. King (1908)A.C. 260 : (77 L.J.P.C. 77), their Lordships of the Judicial Committee gavespecial leave to the respondent to cross appeal nunc pro tunc. This doctrine ornunc pro tunc has been applied by Courts in this country. (See Hara KrishnaMitra v. Ramgopal Mitra, : 14 C.W. N. 759: (6 I.C. 170)). Inthe case now before me requisition was given on 23rd November 1944 for filingthe award and the award was filed on 25th November 1944. The delay in the courtoffice should not prejudice the applicant and if necessary I shall be preparedto direct that the award be filed nunc pro tunc and dated as on 23rd November1944.

43. For reasons stated above, I cannot give effect to thesecond ground of objection as to the maintainability of this application.

44. The result, therefore, is that this application isallowed and I set aside the award made orally on 8th August 1944, and formallydrawn up in writing and signed on 3rd September 1944. The orders of referencewill stand superseded. The applicant will be entitled to the costs of thisapplication as against the respondent company.

.

I.G.H. Ariff and Ors. vs. Bengal Silk Mills Ltd. and Ors.(17.01.1945 - CALHC)