1. It was objected that the Court could not in such a case exercise its powers of Revision under Section 622 of the Code of Civil Procedure, as under Section 522 an appeal is provided. The case, Boonjad Mathoor v. Nathoo Shahoo I.L.R. 3 Cal. 375 was quoted in proof of this position. That is a case under the old Act, and it does not appear to me to be applicable to the questions before us in the present case. Section 522 provides that no appeal shall lie from a decree upon an award, except in so far as the decree is in excess of, or not in accordance with, the award.
2. The section assumes that the conditions existed for passing a decree, that is to say, an award regularly and properly arrived at by arbitrators duly appointed. In the present case each party named two arbitrators;, an umpire was appointed by consent of both parties.
3. The Judge made the order of reference to arbitrators on the 17th December 1880, assuming the consent of the arbitrators nominated. On the 20th December the arbitrators nominated by the first defendant declined to act in that capacity. The Court gave notice to the first defendant that the petition of the arbitrators would be disposed of on the 14th January. On that date the first defendant appeared and objected to the appointment of any other arbitrators. The Court, however, appointed two arbitrators and rejected a petition of the first defendant put in on the 19th January, requesting the Court to call up the case and dispose of it itself.
4. The award was made and objections were taken to it, but decree was finally passed upon it.
5. The appointment of arbitrators by the Judge was presumably made under Section 510. But that section pre-supposes that the arbitrators have first consented to act and have declined after the reference to arbitration. What actually occurred was that whether the arbitrators named by the parties would act or not had not been ascertained before the reference was made. As soon as the two arbitrators named by the first defendant understood that they were nominated, they declined to act. In these circumstances, it would seem that the Court had no authority to substitute new arbitrators under Section 510, against the consent of the first defendant.
6. The award made by arbitrators, two of whom were thus improperly appointed, must be held to be bad and no decree could properly be passed upon it. Under Section 622, I think we ought to hold that the Judge acted with illegality, or with material irregularity in the exercise of his jurisdiction, and that the decree on the award is bad and should be set aside. The order of reference also to arbitrators, whose consent has not been ascertained, is bad and should be set aside, and the Court should proceed under the second clause of Section 507, before referring the case again to arbitration.
7. The costs will be costs in the cause.
Muttusami Ayyar, J.
8. I concur.