1. The plaintiff brought a suit under Section 525 of the Code of Civil Procedure to have an award filed. The District Judge directed that the award should be filed and a decree passed in terms thereof with, costs. The defendant appeals.
2. A number of charges were made against the arbitrator. The District Judge found against these charges and no attempt has been made to substantiate them before us. Eight issues were framed in the suit, but it is only against the finding on the fourth of these issues that any arguments have been addressed to us.
3. The fourth issue is as follows:
Is the so-called proceedings of the arbitrator, dated 23rd November 1904, a preliminary-award, and had the arbitrator authority to undo the same in his final award.
4. The final award was passed on the 20th March 1905 and decided that the defendant was not entitled to the one-fourth share claimed by him in the property in dispute. With a view to ascertain the share of the machinery, immovable property and debts due to the firm, the parties agreed to bid for them among themselves. The arbitrator then drew up the proceedings of the 23rd November 1904; the first seven paragraphs of the proceedings set out the time, place and conditions of the sale. The eighth paragraph runs as follows: If either of the parties fails to appear on the day of the sale or fails to put in the deposit, I shall value the factory to the best of my judgment, assign the factory, movable and immovable properties, as well as the oat-standings to one of the parties, close the accounts, and distribute the profits or losses, giving Mr. Medam Subbanna Chetty three-fourths share and Tulasi Das Nursi one-fourth share of such profits and losses and close the case and pass my award.' The ninth and last paragraph runs thus: On the performance of all the preceding conditions and on the expiry of a month after the date of the sale, I shall pass an award in the matter referred for my arbitration or get a sale-deed executed in favour of the purchaser by either party.'
5. The contention of the appellant is that the eighth paragraph of the proceedings amounts to an award to him of the one-fourth of the property and that the arbitrator had no power to pass his subsequent award which found that the appellant was not entitled to one-fourth of the property.
6. The District Judge found that the proceedings of the 23rd November 1904 was only a proceeding and not a preliminary award, that it declared no right in the mill properties and that the defendant acquired no right under it. With these conclusions we entirely agree. The District Judge referred to the explanation given by the arbitrator for the insertion of the eighth paragraph in the proceedings, that explanation being briefly that the plaintiff only consented to the sale with reluctance, and that the paragraph was inserted to ensure his attendance at the sale. It is objected that this explanation of the arbitrator is not admissible in evidence and reliance is placed upon Duke of Buccleuch and Queensbury v. Metropolitan Board of Works L.R. 5 H.L. 418. It was held in that case that an arbitrator cannot be examined to show what he intended by his award. The question here, however, is not what the arbitrator intended by his award, but whether the eighth paragraph of his proceedings of the 23rd November 1904 was an award at all.
7. On that question we can see no reason why the arbitrator should not give evidence. He is the person best able to tell us whether that paragraph was intended to be an award. He says it was not, and, specially in view of the fact that the charges of misconduct made against him entirely broke down, we have no hesitation in believing him. Further, the ninth paragraph of the proceedings shows that there was no award. That paragraph deals with the contingency of the sale taking place, and says that in that case an award would be passed in the matter referred for arbitration.
8. The only other point pressed is that out of the sum of Rs. 4,921-1-11 which the appellant has been ordered to pay as costs of the suit, Rs. 3,888-15-11 represent money-spent by the Receiver for the preservation of the property in dispute. As the plaintiff gets the benefit of this expenditure we do not think the appellant should be made to bear it, and the lower Court's decree will be modified accordingly, proportionate costs will be allowed.
9. Before closing we may note that preliminary objection was taken on behalf of the respondent that no appeal lies.
10. Following the decision Ponnusami Mudali v. Mandi Sundara Mudali 27 M.K 255 and Thiruvengadathiengar v. Vaidinatha Ayyar 29 M.K 303 we hold that an appeal does lie in this case.