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ibrahim Ali and anr. Vs. MohsIn Ali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1896)ILR18All422
Appellantibrahim Ali and anr.
RespondentMohsIn Ali
Excerpt:
civil procedure code, sections 521, 522 - award--decree, on judgment in accordance with award--appeal. - - now these were all four good grounds which, if substantiated in fact, showed that, so far as lachman das was concerned, there was no award at all, although there was a document which purported to be an award. 8. in our view of the law the preliminary objection to this appeal is well founded and the appeal does not lie......behalf of the appellants it was contended that when objections are taken under section 521 to an award an appeal lies from a decree made under section 522 on a judgment given in accordance with that award, whether or not the court acting under section 522 heard and determined the objections raised under section 521.4. in the course of the argument the following cases were cited: anund mohun paul chowdhry v. ram kishen paul chowdhry 2 w.r. 297; ramonoogra chobey v. mussamut putmoorta chobayan 7 w.r. 205; sreenath ghose v. raj chunder paul 8 w.r. 171. in the matter of the petition of sheikh ilahi bax, 5 b.l.r. app. 75; muhammad ismail khan v. imam ali khan weekly notes, 1888, p. 131; kirpa ram v. laljit weekly notes, 1892, p. 151; ram dhan singh v. karan singh supra, p. 414; sashti char.....
Judgment:

John Edge, Kt., C.J.

1. The plaintiffs have brought an appeal from a decree which was passed on a judgment given in accordance with an award which had been made by two out of three arbitrators who had been at pointed by an order of Court under Chapter XXXVII of the Code of Civil Procedure. The order of reference provided for an award being made by the majority. The grounds of appeal made allegations of misconduct against the arbitrators. It is not necessary to consider whether the matters alleged, if true, amounted to misconduct within the meaning of Section 521 of the Code of Civil Procedure. A preliminary objection was taken to the hearing of the appeal on the ground that the concluding sentence of Section 522 of the Code prohibited the appeal. The question as to whether an appeal could be entertained from a decree made in accordance with Section 522 of the Code on the ground of misconduct of the arbitrator or arbitrators was referred to the Full Bench. We may mention here that against the award which was made in this case objections were duly taken under Section 521 of the Code in the Court below and that the Court heard and determined those objections, and having determined them gave judgment in accordance with the award. One of those objections raised the question of the alleged misconduct of the arbitrators.

2. On behalf of the respondent it was contended that a decree which was in accordance with Section 522 was under all circumstances unappealable.

3. On behalf of the appellants it was contended that when objections are taken under Section 521 to an award an appeal lies from a decree made under Section 522 on a judgment given in accordance with that award, whether or not the Court acting under Section 522 heard and determined the objections raised under Section 521.

4. In the course of the argument the following cases were cited: Anund Mohun Paul Chowdhry v. Ram Kishen Paul Chowdhry 2 W.R. 297; Ramonoogra Chobey v. Mussamut Putmoorta Chobayan 7 W.R. 205; Sreenath Ghose v. Raj Chunder Paul 8 W.R. 171. In the matter of the petition of Sheikh Ilahi Bax, 5 B.L.R. App. 75; Muhammad Ismail Khan v. Imam Ali Khan Weekly Notes, 1888, p. 131; Kirpa Ram v. Laljit Weekly Notes, 1892, p. 151; Ram Dhan Singh v. Karan Singh Supra, p. 414; Sashti Char an Chatterjee v. Tarak Chandra Chatterjee 8 B.L.B. 315; Maharajah Joymungul Singh Bahadoor v. Mohun Ram Marwaree 23 W.R. 429; Boonjad Mathoor v. Nathoo Shahoo I.L.R. 3 Cal. 375; Lachman Das v. Birjpal I.L.R. 6 All. 17 4; Venkayya v. Venkatappayya I.L.R. 15 Mad. 348; Nandram Daluram v. Nemchand Jadavchand I.L.R. 17 Bom. 357; Jagan Nath v. Mannu Lal I.L.R. 16 Ali. 231, and Sujan Rai v. Jhabba Weekly Notes, 1893, p. 45.

5. Some of these cases appear to us to have little or no bearing on the point before us. The case before their Lordships of the Privy Council, viz., Maharajah Joymungul Singh Bahadoor v. Mohun Ram Marwaree 23 W.R. 429, was one in which the Court which had made the order for reference had not allowed sufficient time for the filing of objections to the award. It is obvious from the judgment in that case that their Lordships of the Privy Council considered that if the Court which made an order of reference did not allow sufficient time for filing objections to the award when made, an appeal lay and it may be inferred from that judgment that, when the Court had heard and determined objections filed to the award and then made a decree in accordance with the award, no appeal lay in respect of any of the matters included in the objection.

6. The decree which is unappealable by reason of Section 522 of the Code is a decree made on a judgment given upon an award, and which is not in excess of, and is in accordance with, the award. Now in some of the cases to which we have been referred there was no award. A decree which purports to be passed under Section 522 on a document which is not in fact an award is a decree the appeal against which is not prohibited. There must be an award for the prohibition of Section 522 to apply. As was pointed out by the Bombay High Court in Nandram Daluram v. Nemchand Jadavchand I.L.R. 17 Bom. 357, where three only out of four arbitrators who were appointed to make an award, professed to make an award, the result was that there was no valid award, in fact, no award which was not void ab initio. Arbitrators are tribunals with limited powers. Their powers must be exercised in accordance with the agreement of reference and the order of the Court and within the period allowed by the Court, and before the Court has by order superseded the arbitration. What we mean is that, if the order requires that the award shall be by a majority of the arbitrators agreeing, it is no award if it is not made by such majority. In the case of a private arbitration, if by the agreement of reference the award is to be made by all the arbitrators, it is no award unless it is made by all the arbitrators and unless they all agree in it. If the power of the arbitrators is revoked, as, for example, by the Court passing an order superseding the arbitration under Chapter XXXVII of the Code, or if the period fixed for making the award has expired before the award is made, the arbitrators have no longer seisin of the reference, and they are functi officio and cease to have any more power to make an award than the man in the street. In such cases any award which they might purport to make would be ab initio. It would in fact be no award in the arbitration. It being a condition precedent to the non-appealability of a decree under Section 522 of the Code that there should have been an award it follows that where there was no award, in such cases as we have put, the making of the decree was without jurisdiction, and an appeal lay. We do not mean to imply that the instances to which we have referred are exhaustive of the cases in which the document purporting to be an award would in reality be no award. In the case of Lachman Das v. Birjpal I.L.R. 6 All. 174, which being a Full Bench decision of this Court was pressed upon us, there was in fact no award. An umpire whom the Court was not authorized in that easp to appoint was appointed by the Court and had acted, and it followed that the award made by him was no award. Another objection was that the award was not made within the period allowed by the Court. A further objection was that Lachman Das was not a party to the reference. Now these were all four good grounds which, if substantiated in fact, showed that, so far as Lachman Das was concerned, there was no award at all, although there was a document which purported to be an award. In our opinion the observations of the Chief Justice in that case which went beyond what was necessary to show that there was no award in the ordinary legal meaning of the term affecting Lachman Dasupon which a decree affecting his interests could be passed were purely obiter dicta. We may say that we do not agree with the obiter dicta which fell from the learned Chief Justice in that case. We think that the law on this particular point and the reason for it are very correctly summarized by Mr. Justice Straight in Bhagirath v. Ram Ghulam I.L.R. 4 All. 283.

7. Another condition to a decree under Section 522 being unappealable is that there should have been a judgment in accordance with an award. In our opinion a further condition precedent to the decree is that the Court should hear and determine any objection raised under Section 521. Section 522 enables the Court to pass judgment in accordance with the award, if it sees no cause to remit the award, or if no application has been made to set aside the award, or if the Court has refused an application to set aside the award. It follows that if an application to set aside an award is made, the Court cannot proceed to give judgment in accordance with the award until it has refused the application, and the Court is not competent to refuse the application without considering and determining it. So, in our opinion, when an application to set aside an award has been made, and has not been judicially determined, the Court is not competent to proceed under Section 522, and if it does proceed under that suction and make a decree, there is no prohibition in that section against an appeal from a decree made under those circumstances. If, however, an application to set aside an award is made on the ground of the misconduct of an arbitrator, and that application is refused after judicial determination and a decree made under Section 522 which is in accordance with the award and not in excess of it, no appeal lies. The award is not a void award in such a case, oven though the Court may have wrongly decided the question of misconduct. At the most it might be a voidable award, and the Legislature has not chosen, and we think rightly, to allow an appeal from the judicial decision of a Court on a question of the corruption or misconduct of an arbitrator. The Court having decided rightly the question raised by an application under Section 521 against the applicant there is an award within the meaning of Section 522 in accordance with which judgment can be given and a decree made under that section. We may point out in conclusion that the decision of the Privy Council to which we have referred shows that a Court before acting under Section 522 of the Code must allow the parties the time prescribed by the Indian Limitation Act for filing their applications to set aside the award.

8. In our view of the law the preliminary objection to this appeal is well founded and the appeal does not lie. With this opinion the appeal will go back to the Bench which made the reference.

9. In accordance with the above opinion the appeal was, on the 10th of July 1896, dismissed by the Division Bench (Banerji and Alkman, JJ.) which had made the reference.


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