HARA KRISHNA MITTER Vs. RAM GOPAL MITTER

JUDGEMENT

(1.) WE are invited in this Rule to set aside a decree based on an award made by an arbitrator appointed by the Court in a proceeding under Section 523 of the Code of 1882. Tt appears that on the 24 January 1908, two persons Brojobashi Mitter and Ram Gopal Mitter entered into an agreement to refer the matters in dispute between them to the arbitration of these persons named in the instrument. The matter was referred to arbitration accordingly, but for some reason not material for our present purpose, the arbitrators did not submit their award. Thereupon, as provided in the agreement, an application was made on the 21 July 1908, by Earn Gopal Mitter, imder Section 523 of the Code of 1882, to have the agreement filed in Court, and for the appointment of an arbitrator, in accordance with its terms. On the 9th December 1908, the Court appointed Krishna Kumar Sarkar as the arbitrator, and the matters in dispute were referred to him for decision. The parties appeared before him, and gave evidence in support of their respective cases q and at the conclusion of the full arguments addressed to him, he took time to consider his award. Shortly after, one of the parties, Brojobashi Mitter, died on the 24 April 1909. This was brought to the notice of the Court, and it was prayed that the legal representatives of the deceased might be brought on the record. The Court, however, thought that such actioo was unnecessary at that stage of the proceedings. On the 28 April, that is four days after the death of Brojobashi Mitter, the arbitrator submitted his award. On that very date, an application was made for substitution of the legal representatives of the deceased; they were brought on the record in due course and were allowed to file exceptions to the award. They took various objections but apparently no objection was taken on the ground that the award was void because it had been delivered subsequent to the death of Brojobashi Mitter. The Court overruled all the objections on the merits except one off a very minor character, and made a decree substantially in accordance with the award. WE are now invited to set aside this decree on the ground that it was void, because based upon an award by the arbitrator after the death of one of the parties. In support of this position, reliance has been placed upon the cases of Potts V/s. Ward 1 Marshall 366 : 15 R.R. 680 : 3 S.E.C. (O.S.) 21; Toussaint V/s. Hartop 7 Taunt 571 : 1 Moore 287 : Halt 335; Cooper V/s. Johnson 2 B. & Ald. 394 : 20 R.R. 483 : 3 S.E.C. (O.S.) 82 and Rhodes v. Haigh 2 B. & C. 345 : 26 R.R. 376 : 3 D. & R. 608 : 2 L.J. (O.S.) K.B. 40. On the strength of these cases it has been broadly contended that when matters in dispute have been referred to arbitration, the death of one of the parties at any time before the award is made, operates in law as a revocation of the authority of the arbitrator, and the Court will consequently let aside an award made subsequent to such death. Now, it maybe conceded that the cases to which reference has been made, as also other cases of high authority, one of which was decided by the Judicial Committee and another by the House of Lords; President V/s. Van Reenen 1 Knapp P.C. 83 : 12 E.R. 252; Caledonian Railway Co. V/s. Lockhart 3 Macqueen H.L.808 : 6 Jur. N.S. 1311; Blundell V/s. Brettargh 17 Ves. 232; Edmunds V/s. Cox. 3 Douglas 406, support the proposition that as a submission to arbitration confers no more than a naked power, the death, before award, of a party to a common law submission has the effect of a revocation of the submission. But as an exception to this doctrine, it has been held that, where, as in the case before us, the submission has been made a rule of Court, the death of one of the parties does not work a revocation, Freeborn V/s. Denman 8 N.J. Law 116; Bacon V/s. Cranston 15 Pickering 79; Moore V/s. WEbb 6 Heisik 301. The principle is that as the suit is pending in Court, the death of one of the parties does not operate as a revocation, but the suit may be revived against the legal representatives and continued. Prom this point of view, the death of a party after award and before final decree made, does not affect a revocation of the submission. The case before us is of an intermediate character, as here the death took place after the proceedings had closed before the arbitrator for all practical purposes, and before he had pronounced his decision. There is, consequently, no room here for the application of the broad principle that the death of one of the parties at any stage of the proceedings operates as a revocation of the authority of the arbitrator on the ground that the authority of the arbitrator is founded upon the agreement of the parties and the effect of the death of one of them is to terminate the agreement. WE may add further that this broad rule has not been accepted as applicable to this country. In the case of Perumalla Satyanarayana V/s. Perumalla Venkata Rangayya 17 M. 112, it was pointed out that the policy of the Indian Legislature in a matter like this has been not to follow the English Common Law with regard to references to arbitration, and that such contracts are not revocable in India at the will of either party, nor will the authority of the arbitrator be deemed as necessarily revoked by the death of one of the parties to the arbitration. It is not necessary for us to decide, in the circumstances of the present case, whether the authority of an arbitrator is necessarily revoked by the death of one of the parties to the arbitration, because here matters had proceeded much further than a private reference out of Court. The agreement had been filed in Court. The Court had acted upon it and had appointed an arbitrator. The arbitrator had heard the matter, and so for as the presentations of the respective cases of the parties are concerned, he had, for all practical purposes, come to the conclusion of the proceedings. The only thing which remained to be done was the delivery of his award. In such circumstances, where the arbitrator was acting under the authority of the Court, we are of opinion that the same principle should be applied as in the case of Courts of Justice, where if a case has been concluded and judgment has been reserved, the validity of the judgment is not affected by the death of any of the parties during the interval. This doctrine of nunc pro tunc is based on the maxim that an act of the Court shall prejudice no man, which affords a safe and certain guide for the administration of the law; the delay is the act of the Court, and neither party should suffer for it. Broom's Legal Maxims, 7 Edition page 97. Freeman on Judgments, Volume I, Section 56, Black on Judgments Volume I, Section 126, Cumber V/s. Wane 1 Smith Leading Cases 338 at p. 355; Miles V/s. Bough 3 Dowling & Lowndes 105; and Turner V/s. London & S.W. Railway L.R. 17 Eq. 561; Ecroyd V/s. Coulthard (1897) 2 Ch. 554 at p. 573 : 77 L.T. 357 : 46 W.R. 119 : 61 J.P. 791 : 66 L.J. Ch. 751; Eyre V/s. Hollis 12 Ir. Eq. R. 607. If it were necessary to show that a principle of this description, based upon obvious grounds of justice, equity and good conscience, is applicable to Courts of this country, we would refer to the decision of their Lordships of the Judicial Committee, in Surendro Keshub Roy V/s. Doorgasoondery Dassee 19 C. 513 : 17 I.A. 108, which has been repeatedly applied by all the Indian High Courts. Narna v. Anant 19 B. 807; Rama Charn V/s. Ananta Charya 21 B. 314; Chetan Charan Das V/s. Balbhadra Das 21 A. 314; Raghunatha Thatha Chariar V/s. Venkatesa Towker 26 M. 101; Raja Gour Chandra Gajapati Narayan V/s. Raja Makunda Deb 9 C.W.N. 710; Baikuntha Dey V/s. Salimulla Bahadur 12 C.W.N. 590 at p. 597 : 6 C.L.J. 547 at p. 555. WE are of opinion that although an arbitrator is not a Court for all purposes, when, as in the present case, he acts under the authority of the Court, the principle of nunc pro tunc may well be applied to proceedings before him. There is no doubt whatever that in the case before us the defendant-petitioners have not been prejudiced in any way, and the objection taken by them is of an entirely technical and unsubstantial character. The original party to the reference whom they now represent had the fullest opportunity to present his case before the arbitrator. If the petitioners had been brought on the record before the award was delivered, they could have nothing to add to what had been stated before. Under these circumstances, we are of opinion that no valid legal objection can be taken to the award or to the decree based thereupon. There are obviously no merits in this Rule, and it must be discharged with costs. WE assess the hearing fee at 2 gold mohurs.