VENGU AYYAR Vs. YEGYAM AYYAR

JUDGEMENT

(1.) THE facts connected with this civil revision petition are these: There was a suit for partition before the District Munsif's Court, Ambasamudram, by one brother against others which was referred to arbitration. Defendant 1, the eldest brother, claimed that except items 1 to 5 of the plaint schedule the rest of them, items and to 25 were his self -acquisitions standing either in his own name or in the name of his wife, defendant 2. The advocate -arbitrator agreed with defendant 1's contentions and made an award which the Court, however, remitted on the ground that it was not clear whether every individual sale in respect of the items in suit wag considered by the arbitrator. On remittal, the arbitrator gave notices to both the parties. The plaintiff did not turn up with the result that the arbitrator, finding that he could do nothing, sent back the record to the District Munsif. He thereupon took up the objections to the award which had been previously filed, and, after examining the arbitrator and the plaintiff, found that there was no misconduct about the proceedings of the arbitrator and upheld the award. The plaintiff thereupon preferred an appeal to the Court of the Subordinate Judge of Tinnevelly objecting to the award as one which became void under Sub -section (3) of Section 16, Arbitration Act X [10] of 1940, on the failure of the arbitrator to reconsider the award on remittal and submit his decision within the time fixed. The objection was upheld by the learned Subordinate Judge, so that the suit stands to be tried by the learned District Munsif as a result of the decision of the learned Subordinate Judge.

(2.) DEFENDANTS 1 and 3 have preferred this revision petition against the order of the learned Subordinate Judge. Their contention is that the order of the original remittal by the learned District Munsif was itself irregular, and that although they did not file an appeal against the order because of its unappealability it could be open to them to plead the irregularity as they did in the appeal preferred by the plaintiff against the order of the learned District Munsif eventually upholding the award. This contention is, in my opinion, well -founded. The ground on which the original remittal was made by the learned District Munsiff is not one contemplated by any of the clauses of Sub -section (1) of Section 16. The procedure adopted by the learned District Munsif seems more akin, in my judgment, to the procedure by way of remand in the exercise of inherent powers on the part of an appellate Court under the Civil Procedure Code. No Court is entitled to add to the grounds of remittal set forth in the statue, and the order of remittal, made by the learned District Mun -sif must accordingly be held to be invalid. There was and could be, no appeal against that order, because none is provided for by the statute, and when against the order of the learned District Munsif upholding the award an appeal was taken by the plaintiff to the Court of the Subordinate Judge it was undoubtedly competent to defendant 1 to plead the irregularity of the order of remittal and to sustain the order of the learned District Munsif on the ground of such irregularity.

(3.) MR . Venkatarama Aiyar for the respondents has drawn my attention to a case reported in Re An Arbitration between Baxters and Midland Rail Co., (1907) 95 L. T. 20: 22 T. L. R. 616. As the head -note to the ruling puts it, what happened in that case is this: In an arbitration under the Light Railways Act, 1896, in which under the statute the costs were in the discretion of the arbitrator, the arbitrator made and published an award in which he said nothing as to costs. Upon an affidavit by the arbitrator that the reason why he had made no award as to costs was that he had been under the misapprehension that the arbitration was subject to the provisions of the Lands Clauses Act, 1845, under which costs follow the event, and that if he had known that he had power to award costs, he would have awarded them to the claimants, it was held that as the mistake made by the arbitrator was merely one of omission, and he did not seek in any way to impeach the award that he had made, the matter ought to be remitted to him for his consideration. The statute with which that case was concerned is different from the one with which we are concerned here. The provision as to remittal in that statute is in Section 10(1) and is as follows: 'In all cases of reference to arbitration the Court or a Judge may from time to time remit the matters referred or any of them, to the reconsideration of the arbitrators or umpire,' and Sch. 1 of that statute further provided as follows: 'The costs of the reference and award shall be in the discretion of the arbitrators or umpire, who may direct to and by whom and in what manner those costs, or any part thereof, shall be paid.' The decision reached by the Court of appeal in England on the language of that statute and on the facts of that case affords no assistance to the determination of the point before me.