1. In this case the plaintiff sued to recover a sum of money due for profits and Government revenue. In the Court of First Instance the dispute was referred to arbitration, and the majority of the arbitrators gave an award in favour of the plaintiff for Rs. 1,021-9, payable by instalments. The first Court, under Section 518 of the Code, modified the award, so far as it related to the payment of instalments, on the ground that this was not a matter which was referred to arbitration. The defendant appealed to the District Judge and the Judge, though allowing the power of the arbitrators to settle the manner of payment of the instalments, reduced the number of the instalments that had been fixed. From this decision the plaintiff has appealed, and the defendant has filed objections. The plaintiff's plea that no appeal lay to the Judge is bad, with reference to Section 522 of the Code, which disallows appeals 'except in so far as the decree is in excess of, or not in accordance with the award.' I am of opinion that the decree of the first Court not being in accordance with the award, an appeal lay to the Judge. With regard to the defendant's objection, it has force. The question before the Judge was, whether the first Court had rightly modified the award under Section 518 of the Code, and from the terms of the reference to arbitration, it is clear that it gave the arbitrators full powers, not only as to the amount to be paid, but also as to the mode of payment. Under these circumstances, it appears to me that the plaintiff's appeal must be dismissed, and the defendant's objection allowed, and a decree will be passed in the terms of the award. Each party will bear their own costs. The defendant will have the costs in this Court.
2. In the connected case, S.A. No. 1484 of 1885, I am of opinion that the plaintiff's appeal fails, because there was an appeal to the Judge, and as no objections have been taken here to the Judge's decree, it is sufficient to say that the appeal must be dismissed with costs in this Court.
3. I concur in my learned brother Oldfield's judgment in-both oases. In S.A. No. 1483 of 1885, the submission to arbitration, dated the 19th November 1884, refers all the disputes involved by the sub between the parties; in other words, 'the reference 'of a cause' and 'of all matters in difference in a cause' means exactly the same thing, and only gives the arbitrators power to decide on the questions raised by the pleadings, which are necessary for the determination of the cause' (Russell on Arbitration, p. 117). This shows that the arbitrators cannot go beyond the scope of the suit. Now, in this case, the claim is one for money, and a large part of the argument of the learned Munshi on behalf of the appellant was to the effect that the arbitrators exceeded their powers in fixing the instalments. Again, at p. 391, of Mr. Russell's work, it is said: 'An arbitrator may in general fix the time and place at which payment is to be made, though he need not do so unless he think fit. It seems he may award one party to give the other a promissory note payable at a future day, for that is the same thing in effect as awarding the payment of the money at the future day. So he may order one party to execute a bond for the payment to the other of an ascertained sum of money at a specified time. He may direct payment to be made by instalments. He may add that if the sum awarded be not paid by the appointed day, the party shall pay a larger sum by way of penalty; or when the payment is to be by instalments, that if one be overdue the whole |mount shall be payable at once.' This is the general rule which is observed in England, and I see no reason why it should not equally be followed in this country. With reference to the remarks of my learned brother as to Section 518 of the Code, I agree that the word 'award,' used in the last sentence of Section 522, must be understood to mean an award as given by the arbitrators, and-not; as amended by the Court under Section 518. The words 'in excess of, or not in accordance with, the award,' used in the former section, were intended to enable the Court of appeal to check the improper use of the power conferred by Section 518, and, in the absence of such a check a Court of First Instance, professing to act under Section 518, might, pass a decree far in excess of the powers given by that section.
3. Under these circumstances I agree with the orders proposed by my learned brother Oldfield in both cases.