TALLAPRAGADA SURYANARAINA ROW Vs. TALLAPRAGADA SARABAYA

JUDGEMENT

(1.) The question referred to us appears to assume that an award made in the circumstances stated in the question would not be a valid award. In the course of the argument the question was raised whether, under the provisions of the Civil P. C., an award made in the circumstances stated would not be valid notwithstanding the refusal of two of the arbitrators nominated by the parties to act, and the fact that the Court had appointed arbitrators in the place of those who had refused to act without the parties desiring" (see Section 507 of the Civil P. C. of 1882) that the nomination of fresh arbitrators should be made by the Court. As to this I am not prepared to dissent from the view taken by this Court in Pugardin V/s. Moidin 6 M. 414 and Bala Pattabirama Chetti V/s. Seetharama Chetti 17 M. 498 and by the Allahabad High Court in Fayaz-ud-din V/s. Amir-ud-din 6 A.L.J. 351 : 1 Ind. Cas and in Bepin Behary Chowdry V/s. Annoda Prosad Mullick 18 C. 324. In his judgment in the Allahabad case, Stanley, C.J., refers to the statement of the law in Russel on Arbitration, (see Edition 9, page 92) that the acceptance of the office by an arbitrator seems necessary to perfect the appointment. But the question of course is, not whether the original appointment of arbitrators who refuse to act was good, but whether an award given in the circumstances stated in the question is a good award. I share the doubts expressed by Banerji, J., in the Allahabad case, but, as I have said, I am not prepared to dissent from the cases to which I have referred. Accordingly, I deal with the case on the footing that the award was bad.

(2.) The general right of appeal which would otherwise exist from a decree given in pursuance of an award is expressly cut down by Section 522, which provides that no appeal shall lie from a decree following a judgment under that section except in so far as it is in excess of, or not in accordance with, the award. There is thus a double limitation--a limitation as to the ground of appeal and a limitation as to the extent of the scope of the appeal where an appeal lies. Even when the decree is in excess of the award, there is only an appeal, against so much of the decree as is in excess of the award. The intention of the Legislature seems to be clear that where there is a reference to arbitration and an award, if the Court sees no cause to remit the award, and there is no application to set aside the award, or an application to set aside the award has been refused, that the validity of the award cannot be impugned. The grounds on which an award may be remitted are set out in Section 520. It seems clear that under this section an alleged defect in the tribunal which gave the award is no ground for remitting it. It also seems clear that this is no ground for setting aside the award under Section 521. As I read the provisions of the old Code, it Seems to me that if there was no appeal under Section 522 on the ground that there was no award in law, there were no means of impugning an award (except where there is an application to file an award under Section 526) on the ground that the award was bad in law. This being so, one would be disposed, if possible, to construe Section 522 so as to supply these means. This, in effect, in the numerous decisions to which we have been referred, is what the Courts in this country have done. They Have held that award in Section 522 means a good award; but the very object of Section 522 seems to have been to prevent that question being raised when matters have reached the stage of judgment according to the award.

(3.) The question came before the Privy Council in Ghulam Khan V/s. Muhamad Hassan 29 C. 167 : 29 I.A. 51. In that case their Lordships observed: Those words (the words in Section 522 limiting the right of appeal) appear to be perfectly clear. Their Lordships would be doing violence to the plain language and the obvious intention of the Code, if they were to hold that an appeal lies from a decree pronounced under Section 522, except in so far as the decree may be in excess of, or not in accordance with, the award. The principle of finality which finds expression in the Code is quite in accordance with the tendency of modern decisions in this country. The time has long gone by since the Courts of this country showed any disposition to sit as a Court of appeal on awards in respect of matters of fact or in respect of matters of law. In the earlier Privy-Council case, Raja Har Narain Singh V/s. Chaudhrain Bhagwant Kuar 13 A. 300 : 18 I.A. 55, the award was made after the period allowed by the Court had expired. The Privy Council held that an appeal lay from a decree in pursuance of the award. Section 521 expressly provides that no award shall be valid unless made within the period allowed by the Court. In that case the tribunal which made the award was functus officio when the award was made and the award was invalid by the express enactment of the legislature. That seems to me to be a different case from the present where the award is sought to be impugned by way of appeal from a decree given under Section 522 on the ground that certain of the arbitrators were appointed by an order which the Court had no jurisdiction to make. In any case, we are governed by the later decision. In Raja Har Narain Singh V/s. Chaudhrain Bhagwant Kuar 13 A. 300 : 18 I.A. 55 the Privy Council no doubt express their entire approval of the judgment of the Allahabad High Court in Chuha Mal V/s. Hari Ram 8 A. 548 and in that judgment the Allahabad Judges made the general observation that as the award was invalid the decree was not a decree in accordance with an award from which no appeal lies. But it seems to me the observation by the Allahabad Judges and the approval of their judgment by the Privy Council must be read with reference to the facts of the case in the Allahabad High Court, and not as a pronouncement that in all cases where an award is bad in law there is a right of appeal notwithstanding the express limitation on the right of appeal contained in Section 522.