W. Comer Petheram, C.J. and Oldfield, J.
1. This is a case coming under, Section 523 of the Civil Procedure Code.
2. The plaintiff applied in writing to the Court of the Judge of Jaunpur to file an agreement entered into by him and the defendant to refer certain matters to arbitration. The agreement is dated the 27th August 1879, and the application was presented on the 17th August 1883.
3. This application was numbered and registered as a suit, as required by the section; and notice was given to the parties to show cause why the agreement should not be filed. The defendant filed some objections, which were disallowed; and the Court made an order of reference, as required by the section, to the two arbitrators named in the agreement.
4. By this agreement only two arbitrators were named, and no provision was made for difference of opinion, by appointing an umpire, or otherwise, It appears that one of the arbitrators applied to the Court to appoint an umpire, as the arbitrators could not agree; and the Court did appoint an umpire, and directed that the award should be submitted on the 17th March 1884.
5. The defendant, on the 14th March 1884, objected to the umpire appointed by the Court; and no notice would appear to have been taken of the objection; and an award was made by the umpire and one arbitrator, without the concurrence of the other arbitrator, and submitted to the Court on the 15th March 1884.
6. Some objections were filed to it by the defendant, on the 27th March, which were disallowed; and the Court passed a decree in conformity with the award, The defendant then appealed to the Judge, who reversed the decree, on the ground that the award was illegal, inasmuch as it was not consistent with the agreement for the Court to appoint an umpire, or for the award to be made by the umpire and one only of the arbitrators named.
7. In appeal by the plaintiff, it has been urged that no appeal lay to the Judge, and that the defendant was precluded from appealing, inasmuch as he had not applied to set aside the award within the ten days allowed by art, 158 of the Limitation Act, and that it was within the power of the Court to appoint an umpire, and for the umpire and one arbitrator to make the award.
8. We think the appeal must fail. An appeal will lie to the Judge from the decree of the first Court with reference to the Full Bench ruling of this Court to which the Judge refers Lachman Das v. Brijpal I.L.R. 6 All. 174 where there has been no legal award such as the law contemplates; and this is the case here, as it seems to us that the agreement gave the Court no power to appoint an umpire, and required that the award should be made by the two arbitrators named by the parties.
9. It has been contended that Section 509 of the Civil Procedure Code gives the Court a power to provide in the way it did for difference of opinion among the arbitrators; and we were also referred to Section 508.
10. But Section 509 and the other sections preceding Section 523 are only made applicable to cases coming under Section 523 (like the one we are dealing with) so far as their provisions are consistent with the agreement filed under Section 523.
11. The terms and intentions of the agreement itself must therefore be looked to, to see if Section 509 or Section 511 could be properly applied in this case; and we think they could not, as no implied power to appoint an umpire can be gathered from the agreement of the parties, which appears to have been that the two arbitrators named by them should alone and in consultation arbitrate between the parties, by coming to some unanimous decision upon the matters referred. There will be therefore no legal award in this case.
12. We do not think that there is any force in the plea that the defendant-respondent is precluded from contesting by way of appeal the decree of the first Court, because he did not apply to the Court to set aside the award within the time allowed by Article 158 of the Limitation Act.
13. This article applies to applications under the Civil Procedure Code to set aside an award, that is, to applications referred to in Section 522, which are those to set aside an award on any of the grounds mentioned in Section 521.
14. The defendant, in appeal, however, does not contest the award on any of those grounds.
15. His objection is that the persons who made the award had no power at all to make it; and there was, in consequence, no legal award; and he questions the legality of the procedure. Whether or not the defendant would be precluded in appeal from making objections on any of the grounds mentioned in Section 521, because he had not applied to set aside the award on those grounds within the time allowed by the Limitation Act for making the application, is a question we need not determine, as it does not arise here; but there is nothing with reference to the Limitation Act to prevent him from raising the question he now does.
16. A long argument was addressed to us by Pandit Ajudhia Nath on behalf of the defendant, that the plaintiff-appellant's application to file the agreement was itself barred by limitation under Article 178 of the Limitation Act; but taking the view here taken, that the appeal fails, it is unnecessary to discuss it.
17. The appeal is dismissed with costs.