1. We have decided, after hearing arguments of counsel in this case, to refuse this application for leave to appeal to His Majesty in Council.
2. The order which it is sought to take in appeal is an order which was passed by this Bench in Civil Revision No. 125 of 1923. In other words, it was an order passed under the provisions of Section 115, Civil P.C. The matter came before this Court in connexion with an arbitration award. The award having been attacked in the trial Court was accepted by the learned Judge of the Court below and we decided by our order that there was no case for interference in revision. We therefore allowed the order of the District Judge to remain as it was.
3. A preliminary objection has been raised before us and it is argued in this connexion that having regard to the language of Section 109, Civil P. C, Clause (a), the applicants have no right to apply for leave to appeal to His Majesty in Council. This argument is based on the consideration that the order which was passed by this Bench, and which is the order complained of, was not an order passed 'on appeal' by a High Court. We agree with the argument, and we do not think that an order which has been passed by this Court in the exercise of its revisional jurisdiction is an order passed 'on appeal.' We understand there is authority for the contrary view in a case reported as Harish Chandra v. Nawab Bahadur of Murshidabad (1911) 13 CLJ 688. The view there taken followed the view which was adopted by the Madras Court in Chappan v. Moidin Kutti (1899) 22 Mad 68. This, latter was a case in which the matter under discussion was the right of appeal under the Letters Patent.
4. We are not prepared to take the view that an order passed by this Court in the exercise of its revisional jurisdiction is an order passed 'on appeal.' There is a substantial difference between the powers of this Court when exercised in appeal and when exercised in revisional jurisdiction. As was very properly pointed out the jurisdiction of this Court under Section 115 is a discretional jurisdiction and the Court is not bound to interfere even if it is satisfied that an error of law has been committed by the Court below. It would be otherwise in a case which came before this Court 'on appeal.' We are therefore of opinion that this application does not lie under Section 109(a). On the other hand it is argued that if it does not lie under Clause (a) it does lie under 01. (c) which provides that an appeal would lie to His Majesty in Council from any decree or order when the case as hereinafter provided is certified to be a fit one for appeal to His Majesty in Council. We are of opinion that the application could be entertained under this clause if it is made to appear that the case is a fit one for appeal. It was argued before us that in the present case, as in the case reported as Saadatmand Khan v. Phul Kuar (1898) 20 All 412, the application for a certificate ought to be made to the Court which passed the decree. We do not think this is so, and it may also be mentioned that in the case reported as Saadatmand Khan v. Phul Kuar (1898) 20 All 412, the matter never came before the High Court at all. There was no order by the High Court in that case.
5. We are left then to consider whether this application ought to be granted on the ground that the case is one certified to be a fit one for appeal to His Majesty in Council. It is argued by Mr. Peary Lal Benerjee, who appears on behalf of the applicants, that a substantial question of law is raised and one of general importance. The argument is put in this way. It is said that it would be a great hardship on litigants who engage in arbitration proceedings if they were deprived of the opportunity of showing by means of an appeal that what purported to be an award was not an award at all. We think instead (and the law is so settled in this Court) that under the present Civil P. C, the policy of the law is to make all decisions in arbitration cases final. We may refer in this connexion to the Full Bench decision of this Court reported as Lutawan v. Lachiya AIR 1914 All 446, and to the observations of the learned Chief Justice at p. 74 of the judgment where he says:
It seems to me that it was the clear intention of the Legislature by this amendment of the Code that objections to the award on the ground of invalidity from any cause whatever should be decided by that Court and by no other Court.
6. Similarly, Benerji J., observes at p. 75 of the report:
It is manifest from the provisions of the Civil P.C. that the intention of the Legislature is to give finality to the decisions of arbitrators and to the decrees passed in accordance therewith.
7. We agree respectfully with these observations on the scope of the arbitration law as it now stands and we think it is impossible to say that any hardship is caused, whereas at present the law contemplates that any objection taken in respect of the validity of an award is to be determined by the Court through which the reference was made. This is clear from the provisions of Sch. 2, p. 1, sub-p. (1)(c), Civil P. C, when the award is returned by the arbitrator any party then has the opportunity of attacking the award in the Court which made the reference and showing that it is invalid for various reasons which are specified in p. 15 'or otherwise.' It seems to us, therefore that this paragraph contemplates the entertaining by the first Court of all possible grounds which can be urged against the validity of the award and amongst those grounds, we conceive, is included the ground which has now been raised hare, namely, that what purports to be an award is by reason of certain events which are said to have happened prior to the reference, not an award at all.
8. Paragraph 16, Sch. 2, shows clearly that the right of appeal in the case where an award has been made is of a strictly limited nature, and it was, no doubt, for that reason, that the Full Bench held, as we have said above, that it was the policy of the Legislature to give finality to the decisions of arbitrators. We therefore, hold that no proper case has been made out which would justify our granting the certificate asked for, and we accordingly dismiss this application with costs including fees on the higher scale.