Authored By : Francis Maclean, Trevelyan, L.H. Jenkins,Macpherson, Banerjee, Francis Maclean

Francis Maclean, C.J.

1. The question referred for the decision of the Full Benchin this case is, whether when an application has been made under Section 525 ofthe Code of Civil Procedure, and notice has been given to the parties to thealleged arbitration (other than the applicant), the jurisdiction of the Courtto order the award to be filed and to allow proceedings to be taken under it,is taken away by a mere denial of the reference to the arbitration on anobjection to the validity of that reference. The affirmative of the propositioninvolved in the reference has no doubt been decided by more than one DivisionBench of this Court, and it further has the support of the opinion expressed, thoughunnecessarily for the purposes of their decision, by certain members of a FullBench Court in the case of Surjan Raot v. Bhikari Raot (1893) I.L.R. 21 Cal.213224. There is, however, no authority on the point by which we are bound, sothat it is open to us to consider the question on the words of the Code itself,apart from previous decision. The Sections of the Code more directly governingthe present case are Sections 525 and 526, which are in these terms:

2. Section 525,--"When any matter has been referred toarbitration without the intervention of a Court of Justice, and an award hasbeen made thereon, any person interested in the award may apply to the Court ofthe lowest grade having jurisdiction over the matter to which the awardrelates, that the award he filed in Court.

3. " The application shall be in writing and shall benumbered and registered as a suit between the applicant as plaintiff and theother parties as defendants.

4. " The Court shall direct notice to be given to theparties to the arbitration other than the applicant, requiring them to showcause, within a time specified, why the award should not be filed."

5. Section 526.--"If no ground, such as is mentioned orreferred to in Section 520 or Section 521, be shown against the award, theCourt shall order it to be filed, and such award shall then take effect as anaward made under the provisions of this chapter."

6. Now, according to a literal reading of Section 525, twoconditions are requisite to warrant an application that an award be filed inCourt: first, the matter must have been referred to arbitration without theintervention of a Court of Justice; second, an award must have been madethereon. It would, therefore, seem, on general principles, that the existenceor non-existence of each of those conditions is a matter for enquiry andadjudication. It is difficult to see how the Court can ascertain whether or notsuch an award as is mentioned in the section has been actually made, withoutfirst ascertaining, if the matter be disputed, whether or not there has beensuch a reference as is mentioned in the section. It is urged that the sectionpresupposes the existence of a submission or reference to arbitration, and thatif this be disputed, the Court cannot go into the matter, but must leave theparties to have the factum or otherwise of reference decided in an independentsuit. The practical effect of such contention, if sound, would be that anyparty to a reference against whom an adverse award has been made, has only toallege that there was no reference, and he can throw the matter over andparalyze the operation of Sections 525 and 526 of the Code. I can scarcelythink this was the intention of the Legislature, nor do I think the language ofthe section warrants such a contention. It is difficult to see why the Court,on an application under Section 525, can go into the delicate questionsindicated in Sections 520 and 521, and yet is unable to go into that of whetheror not there were any reference to arbitration, which is the substratum of thewhole matter, and upon which the summary jurisdiction under Section 525 isbased. It seems a rather odd conclusion that the Court may go into questionswhich may result in the award being set aside, and yet cannot go into thequestion of whether or not there has been any valid reference to arbitration.It has however been urged before us that this literal interpretation of thissection must be discarded, because, it is contended, there would be no right ofappeal from an adjudication on the factum of reference. This by itself, evenwere the contention well founded, would not be sufficient reason forwithholding from clear and unequivocal language its ordinary meaning, for thefunction of the Court is to expound the as it stands according to the plainsense of the words used. Moreover, any argument drawn from the alleged absenceof any right to appeal loses its force, in view of the fact that the sameconsideration would apply to the adjudication as to the existence of anagreement to refer on an application under Section 523, and also as to thosematters of far greater difficulty and intricacy indicated in Section 521, andreferentially incorporated into Section 526, though undoubtedly they would haveto be. investigated and determined. But in fact the whole basis of thisargument, in my opinion, has no existence, for I think the right of appealexists. In the recent case of Kali Prosanno Ghose v. Rajani Kant Chatterjee(1897) I.L.R. 25 Cal. 141 a Division Bench of this Court has held that anappeal will lie against a decree given in accordance with an award underSection 522 of the Code, when the award upon which the decree is based is not avalid and legal award. An award cannot be a valid or legal award if there hasbeen no submission to arbitration, and how then can the Court go into thequestion of whether or not it is valid or legal if it cannot go into thequestion of whether or not there were a submission to arbitration. I do notthink that Section 522 contemplates there should be no appeal where thevalidity of the award is challenged. Another argument addressed to the Court onbehalf of the opposite party was, that the question of whether or not there hadbeen any submission to arbitration could not be determined, on the ground thatunder Sections 525 and 526 the Court could only investigate such matters as areindicated in Sections 520 and 521. This is a somewhat dangerous argument, for,if it were to prevail, the result would be that the existence and validity ofthe agreement to refer cannot be questioned, and the order to file the awardwould be a matter of course. It will be noticed that under Section 526 it iscompulsory on the Court to file the award, unless some such ground as ismentioned in Sections 520 and 521 be shown against it. The result is that, inmy opinion, the jurisdiction of the Court to order an award to be filed, and toallow proceedings thereunder, is not taken away by a mere denial of thereference to arbitration. This view is consistent with the decision of a FullBench of the Allahabad High Court in the case of Amrit Ram v. Dasrat Ram: (1894) I.L.R. 17 All. 21.

7. I think, however, that this application must be treatedas an appeal, the time for appealing not having expired, and not as anapplication under Section 622 of the Code, and the petitioner must undertake topay any additional Court-fee there may be on the footing of its being anappeal.

Trevelyan, J.

8. I agree entirely with the view expressed by the learnedChief Justice.

L.H. Jenkins, J.

9. I am of opinion that the question referred to us must beanswered in the way proposed by the Chief Justice, and for the reasonsexpressed in his judgment, and I agree with him as to the mode in which thecase should be dealt with.

Macpherson, J.

10. I regret that I must in this case dissent from thedecision of the other learned Judges of this Bench. In my opinion Section 525of the Code presupposes that there has been a reference to arbitration and anaward made thereon, and the Court under Section 526 must deal with the award onthat footing, if it can do so, having regard to the nature of the cause shown.If it cannot, if for instance the cause shown is that there was no submissionand consequently no award, the Court must hold its hand and refuse theapplication.

11. Section 525 does not, it is true, refer to an admittedreference or an admitted award, but the Legislature might well refrain fromusing language which was too suggestive. If stress is to be laid on thiscircumstance, equal stress must be placed on the absence of any indication thatwhen the question of submission is a question in dispute, the Court is todetermine on evidence the fact of a submission. I may point out that an expressprovision to this effect is to be found in Section 531 when an allegedagreement to refer is filed by one of the parties.

12. Section 526 is silent as to the course to be adopted if,in showing cause, there is a denial of any submission, and I see nothing inthat section or in Section 525 to prevent the Court from refusing theapplication on that ground without enquiring into and deciding the disputedfact. The cause to be shown under Section 526, and established according to thedecision of the Full Bench in Surjan Raot v. Bhikari Raot (1893) I.L.R. 21 Cal.213. is some cause as is mentioned or referred to in Section 520 or 521, butsuch cause could only be shown when there was an actual and not merely analleged award. It would, moreover, be contrary to established practice and toall ideas of justice and fairness that when one party alleges and the otherdenies a submission, the burden of proof should be placed on the party denying.It is the party objecting who is to show cause, and this Court has held that toshow cause means to establish cause.

13. The corresponding Section (321) of the Code of 1859enacted that if no sufficient cause was shown against the award, the awardshould be filed. The cases Iswari Prosad v. Bir Bhanjan Tewari (1871) 8 B. L.R. 315: 15 W. R. (F. B.) 9 and Chowdhri Murtaza Hossein v. Mussamat BibiBechanissa (1876) L. R. 3 I. A. 209 show that there was a difference of opinionas to what those words meant. The intended scope of the section has not beenmade very clear in the present Code, but the altered language of Section 526,coupled with the absence of any extending provisions, indicate to my mind thatthe Courts were intended to deal with actual and not with disputed award.Sections 525 and 526 must be read together, and so reading them they bear in myopinion the construction which I have put upon them. This construction is,moreover, consistent with what one may reasonably suppose to have been theintention of the Legislature that when the tribunal undisputedly chosen by theparties has made its award, the Court should determine in a summary way,without any right of appeal and having regard only to matters arising on theaward on the conduct of the parties or the arbitrators in the making of it,whether effect should be given to the award. In determining the scope of thesesections one cannot overlook the fact that finality is given to the decreewhich by the operation of Sections 526 and 522 is to follow on the filing ofthe award, except, in so far as the decree is in excess of or not in accordancewith the award. No appeal is allowed against an order for the filing of theaward, and when such an order is made, the award filed is to take effect as anaward made under the provisions of Chapter XXVII. That is to say, the Court isto give judgment according to the award, which must of necessity be the awardfiled; upon that judgment a decree is to follow, and no appeal is to lieagainst that decree except in so far as it is in excess of or not in accordancewith the award. When the decree is in strict accordance with the award filed, Ifail to see that there is any right of appeal against the decree. If theLegislature intended that the Court of the lowest grade having jurisdiction inthe matter should decide disputed questions of submission, I cannot believethat an appeal from the decision would have been disallowed. Possibly an appealmight lie on the ground that the Court had made a decree which it had nojurisdiction to make, but that would mean that the Court had decided matterswhich it was not competent to decide, and such an appeal would be verydifferent from an appeal against the decree, on the ground that the decree waswrong by reason of an erroneous decision on a question of fact antecedent tothe award with which alone the Courts can deal under Sections 525 and 526.

14. A Full Bench of the Allahabad High Court held in AmritRam v. Dasrat Ram : (1894) I.L.R. 17 All. 21 that the wordsin Section. 526 " if no ground such as is mentioned or referred to inSection 520 or Section 521" covered all objections relating to thesubmission and the authority of the arbitrators to act. If this decision isright my view of the section is wrong. I must however with due respect dissentfrom the decision. It has been already dissented from by Farran, C.J., andStrachey, J.-in Tejpur v. Mahomed Jammal (1896) I.L.R. 20 Bom. 596 and I cannotdo better than adopt the reasons of those learned Judges for holding thatSection 526 bears no such construction as that It is argued, however, that asthe application under Section 525 is to be registered and numbered as a suitbetween the applicant as plaintiff and the other parties as defendants, it mustbe dealt with as a suit, and that the Court has at the least an implied powerto try and decide all matters arising on the application. I think no suchimplication rises from that direction standing alone and without the additionof further words such as are to be found in Section 331 and in Section 529 readwith Section 531, and having regard to the language used it would, in myopinion, be going very far to hold that the provisions of the Procedure Coderelating to suits apply to applications under Section 525, and that every suchapplication is to be dealt with as a suit. If, moreover, the application is tobe dealt with as a suit culminating in a decree one way or the other, one isdriven to what seems to me to be an absurd conclusion. The Court makes an orderrefusing the application on one or other of the grounds referred to in Section526 after adjudicating on the objections which come within that section. Theorder is a decree as defined in Section 9 of the Code, for as it is anadjudication on a right claimed on a defence set up which, so far as regardsthe Court expressing it, decides the suit. An appeal would lie against thedecree, an appeal not being prohibited by any provision of law. If, however,the Court after a similar adjudication overrules the objections coming underSection 526 and makes an order that the award should be filed, the order is notan appealable order, and it is not a decree because it does not finally disposeof the suit. Obviously also no appeal would lie against the decree which is tofollow on the filing of the award, if the decree was in accordance with theaward.

15. It would follow, therefore, that if the application wasrefused on any ground set out in Section 521, the plaintiff would have a rightof appeal, but if the application was allowed, the objections under thatsection being overruled, the defendants would have no right of an appeal. I amunable to believe that any such result as this was intended or contemplated andI must decline to put upon the sections a construction which would lead to it,the more especially as I think they bear a more reasonable construction bywhich such a result is avoided.

16. The consequence would, of course, be much more serious,if there was a dispute as to the submission. In that case, if the Court heldthere was no submission and refused the application on that ground, theplaintiff would have a right of appeal. If it held that there was a submissionand made a decree in accordance with the award, the defendant, in the viewwhich I take and have already expressed, would have no right of appeal.

17. The real objection to putting a limited construction onthe two sections seems to be that the defendant by denying that there was anysubmission could prevent the operation of the sections. I presume that theapplicant would have to support his application by affidavit on verifiedpetition, and that the defendant when called on to show cause must show causein the same sort of way. His denial, therefore, if false, would not be withoutrisk to himself. Nor do I see that in my construction of the sections anyserious hardship or inconvenience is involved. The refusal of the applicationon the ground that there is a dispute as to the factum of a submission meansonly this, that the special and summary procedure provided by these sections isnot applicable to the case. The applicant is not left without a remedy, he canbring a suit to enforce the award, and in that suit all questions upon whichthe parties are at issue would be tried in the ordinary way and with theordinary right of appeal.

18. The cases in this Court seem to me to be all one way andin favour of the view I have expressed. I need only refer to IchamoyeeChowdhranee v. Prosunno Nath Chowdhri (1883) I.L.R. 9 Cal. 557 decided byWilson, J., and myself, and to Bijadhur Bhugut v. Monohur Bhugut (1883) I.L.R.10 Cal. 11 decided by Mitter and Tottenham, JJ. The head-note in the formercase does not seem to be quite accurate. Wilson, J., although he went furtherthan I was disposed to go, says this: There is an additional objection to thepresent order because the applicant when before the Subordinate Judge deniedaltogether that the submission was binding upon her, and Section 525 seems tome to have no application to a case in which the submission or its bindingeffect is in dispute." Then there is the opinion expressed by Prinsep andPlgot, JJ., and in which I concurred, in the Full Bench case Surjan Raot v.Bhikari Raot (1893) I.L.R. 21 Cal. 213. That case overrules some of thedecisions of this Court in which other learned Judges had taken a still morerestricted view of the powers of the Court in dealing with applications underSection 525, and although the opinion above referred to on the question nowraised has not the force of a decision, it was deliberately formed andexpressed in order to prevent the decision of the Full Bench being carriedfurther than it was intended to go.

19. The Bombay High Court has practically adopted the sameconstruction in Samal Nathu v. Jaishankar Dulsukram (1884) I.L.R. 9 Bom. 254and Tejpur Dew Chand v. Mahomed Jammal (1896) I.L.R. 20 Bom. 596.

20. The decision of the Madras High Court in Husananna v.Linganna (1894) I.L.R. 18 Mad. 423 when examined will be found to be noauthority on the question now raised. On the other side there is the decisionof the Allahabad High Court already referred to.

21. It follows from what I have said that I entirely dissentfrom the conclusion that an appeal lies in this case.

Banerjee, J.

22. The question for the determination of which this casehas been referred to a Full Bench is

Whether when an application has been made under Section 525of the Civil Procedure Code, and notice has been given to the parties to thealleged arbitration other than the applicant, the jurisdiction of the Court toorder the award to be filed, and to allow proceedings to be taken under it, istaken away by a mere denial of the reference to arbitration on an objection tothe validity of the reference.

23. The facts of the case upon which this question arisesare shortly these: The petitioner before us applied to the Court of theSubordinate judge of Patna, under Section 525 of the Civil Procedure Code, forfiling an award on the allegation that the same had been made on a reference toarbitration without the intervention of the Court. The opposite party appearedon notice being served on her, and objected to the award being filed in Courton the ground that there was no reference to arbitration by her, and that theekrar or deed purporting to embody her assent to the reference had beenfraudulently caused to be signed by her without the purport of the documentbeing explained to her. And the Court below following the cases of BijadhurBhugut v. Monohur Bhugut (1883) I.L.R. 10 Cal. 11 and Surjan Raot v. BhikariRaot (1893) I.L.R. 21 Cal. 213 rejected the application without taking anyevidence or making any enquiry into the truth of the allegations on eitherside. Aggrieved by the order rejecting the application, the petitioner movedthis Court, and has obtained the rule which has given rise to this reference.

24. The answer to the question referred to us must dependupon the meaning of Sections 525 and 526 of the Code of Civil Procedure, and inascertaining that meaning we must look not merely to the letter but also to thespirit of the law, and must also, as far as possible, have regard to the interpretationput by previous decisions upon these and other cognate provisions of the Code.

25. Section 525 says: When any matter has been referredfor arbitration without the intervention of a Court of Justice, and an awardhas been made thereon, any person interested in the award may apply to theCourt of the lowest grade having jurisdiction over the matter to which theaward relates, that the award be filed in Court.

26. " The application shall be in writing and shall benumbered and registered as a suit between the applicant as plaintiff and theother parties as defendants.

27. " The Court shall direct notice to be given to theparties to the arbitration other than the applicant, requiring them to showcause within a time specified why the award should not be filed."

28. An applicant under Section 525 must, therefore, allegethat there has been a reference to arbitration without the intervention of aCourt of Justice, and an award has been made thereon in which he is interested,and it must be competent to the party summoned to show cause to show, not onlythat the award is open to the objections referred to in Section 526, but alsothat the alleged reference to arbitration never took place. Section 526, it istrue, enacts that " if no ground, such as is mentioned in Section 520 or521, be shown against the award, the Court shall order it to be filed, and suchaward shall then take effect as an award made under the provisions of thischapter; " but that cannot be taken to imply that the party summoned toshow cause can resist the application only if he can show that the award isopen to one or more of the objections contemplated by Sections 520 and 521, andthat he is precluded from urging that there was no actual or valid reference toarbitration. It was argued that the effect of Section 526, referring only tothe objections under Sections 520 and 521, is to make the absence of otherobjections such as that there was no actual or valid submission to arbitration,a necessary condition for the Courts entertaining an application under Section525. But if that had been the intention of the Legislature, it would have beenexpressed, not in this obscure and indirect way, but more clearly and directlyby making Section 525 run, not as it does, but somewhat to the followingeffect, namely, when it is admitted by all the parties concerned that anymatter has been referred to arbitration without the intervention of a Court ofJustice, etc." Moreover, if this argument was well founded, that is, ifthe jurisdiction to entertain an application for filing a private arbitrationaward depended upon the admission of all the parties concerned that there was avalid reference to arbitration, it would make the section practically nugatory,it being always in the power of a recusant party to say that he does not admitthe fact of a valid reference to arbitration having been made.

29. When Section 525 allows a party to apply to the Courtfor filing an award on the allegation that there was a private reference toarbitration and that the award was made upon such reference, and when itdirects that the application shall be numbered and registered as a suit betweenthe applicant as plaintiff and the other parties as defendants, and the otherparties shall be summoned to show cause why the award should not be filed, theCourt must be held to have jurisdiction (unless it is expressly taken away,which is not the case) to enquire into and determine the question whether therehas been a valid reference to arbitration, in the event of the parties summoneddenying the reference. And the object of Section 526 is, in my opinion, not tolimit the jurisdiction of the Court under Section 525 to cases in which thereference to arbitration is admitted, but simply to provide that the only groundsupon which the validity of a private arbitration award, made upon a referenceto arbitration either admitted or proved, can be questioned are precisely thoseupon which an award made on a reference to arbitration in the course of a suitcan be called in question; or, in other words, its object is to show that thevalidity of a private arbitration award cannot any more than that of an awardmade on a reference to arbitration in the course of a suit, be questioned onthe ground of the award being erroneous in fact.

30. It was next argued that if it had been intended that theCourt in a case under Section 525 should determine the question whether therehas been any reference to arbitration when such question is raised, then theLegislature would have provided in Section 588 for an appeal against an orderdetermining such question adversely to the applicant; and it would further haveprovided for an appeal against the decree based on the award when such questionis decided in his favour, instead of making such decree final as the latterpart of Section 526 by implication does.

31. The answer to this argument is simple. An order underSection 525 determining on the objection of the party summoned to show causethat there has been no valid reference to arbitration and rejecting theapplication which is numbered and registered as a suit, is clearly a decree asdefined in Section 2, and an appeal lies against it under Section 540. The caseof Baboo Chintaman Singh v. Uma Kunwar (1866) 6 W. R. Misc. 83: Sup. Vol. B. L.R. 505 was relied upon as showing that such an order is not appealable, butthat was a case under the Civil Procedure Code of 1859, which contained no suchdefinition of the term "decree" as is given in Section 2 of thepresent Code. Again, when the Court disallows the objection that there has beenno reference to arbitration, and orders the award to be filed, and a decree ismade in accordance with the award under the latter part of Section 526, whichby implication makes Section 522 applicable to the case, though such decree, inso far as it is in accordance with the award, is under the last-mentionedsection not open to appeal, yet that does not bar an appeal against the decreewhen the appeal raises the question whether there was any submission to arbitrationand whether there was any valid award at all---See Joy Prokash Lal v. SheoGolam Singh (1884) I.L.R. 11 Cal. 37; Kali Prosunno Ghose v. Rajani KantChatterjee (1897) I.L.R. 25 Cal. 141; and Suppu v. Govinda Charyar (1887)I.L.R. 11 Mad. 85; Lachman Das v. Brijpal (1884) I.L.R. 6 All. 174. Thefinality that Section 522 contemplates attaches to a decree made in accordancewith a valid award; the appeal that that section bars is an appeal against theaward on the ground of the award being erroneous in fact on the merits.

32. It was then argued that though Section 525 requires thatan application for filing a private arbitration award is to be numbered andregistered as a suit, it does not, like Sections 331 and 531, say that theCourt is to try the case in the event of opposition in the same manner as asuit, or that its order shall have the same force as a decree; and that anotice to the other parties to the award requiring them to show cause is notthe same thing as a summons to them requiring them to defend a suit. I thinkthis argument is fully met by the following answer:

33. In the proceedings under the two sections referred to,namely Section 331 and Section 531, the matter in dispute between the partiesis intended to be determined by the Court, and accordingly it is expresslyprovided in those sections that the matter shall be determined by the Court inthe same manner as a suit, and the order of the Court shall have the same forceas a decree. In the class of cases to which Sections 525 and 526 relate, theprimary matters in dispute between the parties are, or are alleged to be,determined by the award of the arbitrators; the dispute, if any, that may ariseis only as to certain secondary or subsidiary matters, that is, as to the factor the validity of the award, or of the submission to arbitration or of both;and if on any ground (including a ground such as this, namely, that there wasno real or valid submission to arbitration), the Court holds that the awardcannot be filed, it is evidently not open to the parties to ask the Court todecide for itself the matters to which the award relates; so that any specificprovision to the effect that the Court is to decide the case as a suit wouldhave been wholly out of place. The absence of any such provision cannottherefore afford valid ground for any adverse argument.

34. Then as to the supposed distinction between a notice toshow cause and a summons to defend a suit, I think it is sufficient to say thatwhen upon a notice to show cause, the party served with notice must allege andprove cause, and the Court must fully and finally determine the validity of thecause shown so far as it relates to matters contemplated by Sections 520 and521, as has been settled by the decision of the Full Bench in Surjan v. BhikariI.L.R. 21 Cal. 213 [LQ/CalHC/1893/55] there can be no good ground for thinking that those wordsimply either that the Court is not to determine at all, or that it is todetermine only summarily, and subject to a more complete determination by asuit, the cause shown, when the cause shown consists in a denial of anyreference to arbitration.

35. It was lastly argued that as the procedure prescribed bySection 525 is a summary one, and the proceeding is instituted by anapplication and not by a plaint on payment of a proper Court-fee, it is notlikely that the Legislature intended that any difficult questions, such asthose relating to the fact or validity of a reference to arbitration, should beenquired into by the Court under that section. But the simple answer to theargument is this, that the Court must under Section 526 enquire into anddetermine objections such as those referred to in Sections 520 and 521, whichraise questions of far greater nicety and difficulty than those sought to beexcluded from the Courts consideration, and there is no reason why the Courtshould not determine these last which lie at the threshold of the case, when itmust enquire into the former.

36. Sections 523 and 524 to some extent favour the view Itake. They provide that a party to a private agreement to refer to arbitrationany matter in dispute may apply to have the agreement filed in Court; thereuponthe application is to be numbered and registered as a suit between theapplicant and the other parties to the agreement, and a notice is to be issuedto them to show cause why the agreement should not be filed, and if nosufficient cause be shown the agreement will be filed, arbitrators appointed,and the case proceeded with in the same manner as if the reference toarbitration had been made in a pending suit. Now in such a case the cause showncan relate only to the fact, validity or subsistence of the agreement to submitto arbitration, and if the Court is to enquire into these matters in aproceeding instituted under Section 523, there is no good reason why it shouldnot enquire into them in a case under Section 525, As I understand the sectionsincluded in Chapter XVII of the Code of Civil Procedure, they are intended toprovide for all cases of reference to arbitration, whether it be made, in thecourse of a suit, or privately without the intervention of a Court. The firstgroup of sections, that is, Sections 506 to 522, provide for reference toarbitration in the course of a pending suit; the second group, that is Sections523 and 524, relate to cases in which the parties have, or are alleged to have,before instituting any suit, privately come to an agreement to refer anymatters in dispute to arbitration, but have proceeded no further; and the thirdgroup, that is Sections 525 and 526, to cases in which there has been, or isalleged to have been, a private submission to arbitration followed by an award.In the first group of sections are given in detail the provisions applicable tothe subject, while the other two groups concisely and by implication refer tosuch of the provisions of the first group as are respectively applicable to theclasses of cases they contemplate, and it is their brevity which has given riseto the difficulty of construing them.

37. I may add that the view I take has the effect ofpreventing multiplicity of judicial proceedings by making the proceedings underSection 525 determine finally all the necessary questions that may arise in it,and it is in accordance with the view taken by the majority of the Full Benchin Brojo Durlubh Sinha v. Roma Nath Ghose (1897) I.L.R. 24 Cal. 908 upon asomewhat analogous question arising upon the construction of Section 375.

38. It remains now to consider the cases cited.

39. Of these Chintamoni Singh v. Rupa Koer (1866) 6 W. R.Misc. 83 (which has already been referred to above), and Lala Iswar Prosad v.Bir Bhanjan Tewari (1871) 8 B.L.R. 315: 15 W. R. (F. B) 9 were decided underthe Civil Procedure Code of 1859 under which the provisions relating to appealwere, as has been shown above, different from those under the present Code.

40. The cases of Ichamoyee Chowdhranee v. Prosunno NathChowdhri (1883) I.L.R. 9 Cab 557; Hurronath Chowdhry v. Nistarini Chowdhranee(1883) I.L.R. 10 Cal. 74 which not only favour the contention of the oppositeparty, but go a great deal further, have been dissented from by the Full Benchin Surjan Raot v. Bhikari Raot (1893) I.L.R. 21 Cal. 213.

41. The case of Bijadhur Bhugut v. Monohur Bhugut (1883)I.L.R. 10 Cal. II, is no doubt against the view I take. The decision in thatcase is based upon the terms of Section 526. Mitter, J., in delivering thejudgment of the Court says: "It appears from Section 526 that the Courthas jurisdiction to adjudicate only upon the grounds of objection mentioned inSections 520 and 521." For the reasons given above I must respectfullydissent from this view. And the same remarks apply to the case of Tejpur v.Mahomed Jamal (1896) I.L.R. 20 Bom. 596.

42. The opinions of PRINSEP, Pigot and Macpherson, JJ., inSurjan Baot v. Bhikari Baot (1893) I.L.R. 21 Cal. 213 are also against the viewI take. But those opinions were not necessary to be expressed for thedetermination of the question before the Court. The ground upon which thoseopinions are based is the absence of any reference in Section 526 to anyobjections other than those contemplated by Sections 520 and 521. But thisground, as I have tried to show above, is not sufficient to support theinference that is based upon it.

43. The case of Muhammed Nawaz Khan v. Alain Khan (1891) L.R. 18 [LQ/PC/1891/21] I. A. 73 was referred to as showing that the Privy Council held that anorder rejecting an application for filing an award under Section 525 would notoperate as res. judicata, upon the question of the validity of the award, andthence it was argued that the jurisdiction of the Court under that section mustbe of a very limited character. I do not think that the case cited lays downany such broad rule or supports any such inference. Their Lordships overruledthe plea of res judicata, not upon the ground of the jurisdiction of the Courtunder Section 525 being limited in any way, but solely upon the ground of thequestion as to the validity of the award not having been raised and decided inthe former proceeding.

44. On the other hand the cases of Amrit Ram v. Dasrat Ram: (1894) I.L.R. 17 All. 21 and Husananna v. Ling anna (1894)I.L.R. 18 Mad. 423 support the view I take.

45. For the foregoing reasons I would answer the questionreferred to us in the negative.

46. But here an important point arises for consideration. Asin the view I take the order of the Court below rejecting the application isopen to appeal, is it competent to the petitioner to invoke our interferenceunder Section 622 of the Code of Civil Procedure The question I think must beanswered in the negative. But as, regard being had to the value of thesubject-matter to which the award relates, the appeal lies to this Court, andas the application under Section 622 was made before the expiry of the timeallowed for an appeal, I would treat the application as an appeal (provided theapplicant puts in the proper Court-fee) and I would decree the appeal, setaside the order of the Court below, and remand the case to that Court for adecision on the merits.

Francis Maclean, C.J.

47. With this indication of our opinion we remit the case tothe Division Bench which referred it to us. We fix three gold mohurs as thehearing fee for the hearing before the Full Bench.

.

Mahomed Wahiduddin vs. Hakiman (16.03.1898 - CALHC)