JANOKEY NATH GUHA Vs. BROJO LAL GUHA

JUDGEMENT

(1.) The question submitted is "Does an appeal lie from an order passed under Section 526 of the Code directing the filing of an award made on a submission to arbitration without the intervention of a Court of Justice?

(2.) The answer depends upon the construction of Secs.526 and 522 of the Code of Civil Procedure.

(3.) It is clear upon the authorities that prima facie an appeal does lie from such an order: see the Full Bench case in this Court of Mahomed Wahiduddin V/s. Hakiman (1898) I.L.R. 25 Calc. 757, the Full Bench case in the Madras High Court of Ponnusami Mudali V/s. Mandi Sundara Mudali (1903) I.L.R. 27 Mad. 255, and the following observations of the Judicial Committee in the case of Ghulam Khan V/s. Muhammad Hassan (1901) I.L.R, 29 Cale. 167, 183: "In cases falling under Heads II and III, the provisions relating to cases under Head I are to be observed so far as applicable. But there is this difference, which does not seem to have been always kept in view in the Courts in India. In cases falling under Head I the agreement to refer and the application to the Court founded upon it must have the concurrence of all parties concerned, and the actual reference is the order of the Court. So that no question can arise as to the regularity of the proceedings up to that point. In cases falling under Heads II and III proceedings described as a suit and registered as such must be taken in order to Bring the matter--the agreement to refer or the award as the case may be--under the cognizance of the Court. That is or may be a litigious proceeding--cause may be shown against the application-- and it would seem that the order made thereon is a decree within the meaning of that expression, as defined in the Civil Procedure Code."