Authored By : Loftus Richard Tottenham, Agnew

Loftus Richard Tottenham and Agnew, JJ.

1. The different procedure followed in the Courts of theSonthal Pergunnahs from that laid down in the Code of Civil Procedure has verymuch complicated the present case. The suit was one to recover money from thedefendants. The first Court dismissed it. Upon appeal, the lower AppellateCourt considered that the evidence upon the record was insufficient to enableit to come to a determination and that the evidence of one Baboo Udit NarainSingh was necessary. It, therefore, sent the case back to the first Court inorder that the evidence of this witness might be recorded and certified to thelower Appellate Court. So far the Court seems to have followed the ordinaryprocedure recognised in the Code. After the case had gone down a petitionappears to have been presented to the lower Appellate Court requesting that thecase, might be referred to the arbitration of two persons named therein. Thelower Appellate Court thought fit to refer this petition to the Court ofOriginal Jurisdiction to which the case had been remitted only for the purposeof having the evidence of a particular witness recorded, the case still pendingin appeal in the file of the lower Appellate Court. The petition having gonedown, the application seems to have fallen to the ground. Another applicationwas made to the Court of First Instance, requesting it to refer the case to thearbitration of the same Udit Narain, for whose evidence the lower AppellateCourt had sent the case down. The petition stated that the parties agreed to bebound by the decision of Udit Narain Singh. The Court, on the 10th May, sentthe record to Udit Narain, with directions to submit his award as arbitratorwithin seven days. Nothing, however, seems to have been done till the 12thSeptember following. On that day the Court directed an order to be sent to thearbitrator to re-submit the record, inasmuch as up to that time his award hadnot been sent in; and the case was set down for trial on the 18th September.The arbitrators award, dated the 12th September, was then sent in, and thefirst Court forwarded it with the record to the lower Appellate Court for thedecision of the appeal. Objections were taken by the defendants to the award onvarious grounds. The lower Appellate Court notices only one ground from amongthe objections filed by the defendants namely, that the judgment of thearbitrator was delivered in their absence. That objection, the lower AppellateCourt thought, was of no consequence. It considered that the parties were boundby the decision of the arbitrator. Thereupon, instead of formally deciding theappeal in accordance with his view, the Deputy Commissioner sent the case backto the first Court, with orders to pass a formal decree in accordance with theaward of the arbitrator.

2. The defendants have preferred a second appeal to thisCourt. The ultimate procedure adopted by the lower Appellate Court gave therespondents an opportunity, which their pleader has availed himself of, ofobjecting to the hearing of this appeal. He says that there can be no appealagainst an arbitration award, and there is no decree of the lower AppellateCourt against which a second appeal can be preferred. It seems to us, however,clear that the order of the lower Appellate Court, such as it is, amounts inlaw to a decree within the meaning of Section 2 of the Civil Procedure Code,because the matter was before the lower Appellate Court on the merits. Theparties were entitled to a decision of that Court as upon the merits; and wehave no doubt that the order made by the Deputy Commissioner directing thefirst Court to draw up a formal decree in accordance with the terms of theaward, was intended by him finally to dispose of the matter before him. We,therefore, held that the appeal is one that we ought to hear; and the greaterpart of the day has been spent in hearing it.

3. The objections taken to the decision are based upon thealleged illegality of the proceedings connected with the arbitration. It hasbeen contended that a case cannot be referred to arbitration when it is beforean Appellate Court, and that arbitration can only be had recourse to before thedecree of the first Court has been made. It has been next objected that,supposing an Appellate Court has authority to refer a case to arbitration,there is no authority in the first Court to do so, when the case is reallypending in appeal in the Court above it. It has been further objected that theapplication in this case to refer the matter to arbitration was not made inaccordance with Section 506 of the Code. That section says that the partiesdesiring the reference must apply in person, or by their respective pleadersspecially authorized in writing in their behalf. It is contended that theapplication for the reference to arbitration to this case was not made by theappellant Bhugwan Dass nor by any pleader duly authorized on his behalf; andthat, therefore, the reference was one with respect to which the Court belowhad no jurisdiction to act. And it is further contended that the award was notvalid, because it was not made within the time allowed by the Court. The timeallowed was seven days from the 10th of May, and the award was not made untilthe 12th September following.

4. As to whether a case can be referred to arbitration afterit has been in an Appellate Court, a Full Bench decision of this Court wascited, wherein it is said that an Appellate Court has no authority to refer acase to arbitration. That case, however, was decided when Act VIII of 1859 andAct XXIII of 1861 were in force. It was held that Section 37 of Act XXIII of1861 did not extend to an Appellate Court, the powers of an Original Court withreference to arbitration. The terms of Section 582 of the present Code seem tous other wider than the old sections; and there has been a ruling of the MadrasHigh Court in the case of Sangaralingam Pillai I.L.R. Mad. 78, to the effect thatan Appellate Court has power in such matters. Though we are inclined to followthe Madras High Court ruling, it is not absolutely necessary for us in thepresent case to decide this point. It is not necessary, because we think thaton two other grounds taken by the appellant, the arbitration proceedings werebad. Section 506 is distinct as to the persons by whom the application to refera case to arbitration must be made. There were two defendants. One of themappears to have made the application in person. The second is said to have madeit, not in person, and not through any pleader specially authorized in writing,but through a person named Ram Rek. If Ram Rek had been a recognised agent ofthe defendant Bhugwan Dass, within the meaning of Section 36, we might havesaid that he would have been competent to make the application under Section506, but Bam Eek was not his recognised agent within the meaning of Section 36.He was simply a person authorized by a muktearnamah to look after the presentsuit on behalf of the defendant Bhugwan Dass. The Court below therefore, in ouropinion, had no jurisdiction to make this reference to arbitration.

5. As to the other ground that the award was not made withinthe time allowed by the Court, we think that this is a matter which is governedby the last Clause of Section 514. The time fixed was seven days. That time wasnever enlarged, and the award was not made till four months afterwards. For therespondents it has been contended that the time allowed by the Court must beheld to mean all the time between the reference and the formal recall of thecase, unless the Court has by some specific order cancelled the reference inthe meantime. It was argued that the Courts order of the 12th Septembercalling back the record, must betaken as an indicates that the Court consideredthat it had enlarged the time sufficiently. To our minds it simply indicatesthat the lower Court was ignorant of the procedure to be adopted. It is evidentthat that Court is not familiar with several portions of the Code.

6. We think that the arbitrators award being clearly bad inlaw in two different respects, all the proceedings connected with that awardmust fall to the ground, and that the lower Appellate Court was wrong insending the case back to the first Court. We, therefore, set aside the decreeof the lower Appellate Court and send the case back to the Deputy Commissionerto be decided according to law. If the lower Appellate Court still thinks thatfurther evidence is required, it will be at liberty to have it taken.

7. The costs of this appeal will abide the result.

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Nund Lall Sein and Ors. vs. Bhugwan Dass Marwari and Ors.(10.08.1885 - CALHC)