CHUNNI LAL Vs. BIHARI LAL

JUDGEMENT

(1.) This appeal is brought from an order passed under Section 562 of the Code of Civil Procedure. The matter in dispute between the parties had been at their request referred to arbitration by the Court which was trying the suit. The arbitrator appointed by the Court returned an award, and to the award so returned objection was taken by the plaintiff in the suit under Section 521 of the Code of Civil Procedure. He set out in his objection certain facts, and upon those facts charged the arbitrator with misconduct. The learned Munsif, before whom the award was, considered the award and the objection and came to this conclusion: "No misconduct has been shown, and the objection is only frivolous and vexatious." The plaintiff then went in appeal, and the appeal was heard by the Additional District Judge of Aligarh. He considered afresh the alleged misconduct and found that the circumstances of the case sufficiently warranted misconduct on the part of the arbitrator as explained in the case of Ganga Sahai V/s. Lekhraj Singh (1887) I.L.R., 9 All., 253. He held that the award was in his opinion bad in law; set aside the decree which had been given upon the award, and remanded the case under Section 562 of the Civil P. C.. It has nowhere been suggested, and indeed it cannot be suggested, that the decree which the Munsif gave was in excess of, or not in accordance with, the award.

(2.) Before us it is contended that the lower appellate Court has no jurisdiction to hear the appeal which was presented to it, and, but for a decision to which I shall presently refer, I should have held that both by Statute and by a Full Bench ruling of this Court the matter was concluded and that no appeal did lie. It is contended for the respondent that the provisions of Section 522 are not exhaustive and that under Section 540 an appeal does lie from the decree. Now Section 540 runs as follows: "Unless when otherwise expressly provided by this Code or by any other law for the time being in force, an appeal shall lie from the decrees, or from any part of the decrees, of the Courts exercising original jurisdiction to the Courts authorized to hear appeals from the decisions of those Courts" It seems to me, especially bearing in mind that the right of appeal is a right created by Statute and does not lie where the Statute does not make provision for it, that Section 522 is one of the exceptions to which Section 540 refers when it says that "unless when otherwise expressly provided by this Code, etc." There is further a Full Bench Ruling of this Court--Ibrahim Ali V/s. Mohsin Ali (1896) I.L.R., 18 All., 422, and there is the Privy Council judgment in Ghulam Khan V/s. Muhammad Hassan (1901) I.L.R., 29 Calc., 167. In this last named case the same contention that Section 522 was not exhaustive was raised, and in spite of it their Lordships of the Privy Council held that they "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 decision 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." See Adams V/s. Great North of Scotland Railway Company L.R., 1891, A.C. 31.

(3.) The learned vakil for the respondent, however, called our attention to a very recent case--Sham Lal V/s. Misri Kunwar, F.A. No. 98 of 1905. The decision is one entitled to our most careful consideration, but, with the utmost respect to the learned Judges who decided it, I find it impossible to distinguish that case from the present, and, in view of the circumstances already set out, to follow it. So far as I can see the ruling of their Lordships of the Privy Council reported in I.L.R., 29 Calc., 167, was not cited. In Sham Lal V/s. Misri Kunwar the objection of misconduct was taken in the Court to which the award was returned, and the Court overruled it in the following words: "I hold that the arbitrator did hold meetings and make inquiry and did make the award." This was a finding by the Court in spite of the arbitrator himself having said that the award submitted by him was a bogus award. As so much stress is laid upon this case, I think it bettor to refer this case to a Full Bench in order that the point that arises, viz., whether, when an objection of misconduct to an award has been heard and decided by the Court to which an award was returned, and the objection has been overruled, and the decree which followed upon the award is not in excess of and is in accordance with the award, an appeal still lies upon any point, or whether that decree is not as regards appeal absolute and final. Richards, J.