1. Mitter and Beverley, JJ.
2. This is an appeal from an order of the Subordinate Judge of Monghyr, directing an award to be filed under the provisions of Section 526 of the Code of Civil Procedure.
3. A preliminary objection has been raised on behalf of the respondent that no appeal against such an order will lie, and that, if an appeal be allowed, it will lie to the District Judge and not to this Court.
4. We are clearly of opinion that, under the provisions of the Code, no appeal will lie against the order directing the award to be filed.
5. But in the present case the award has been followed by a decree, and the question is whether, regarding this as an appeal against that decree, the appeal will lie.
6. There has been some conflict of authority in this Court as to the proper construction of Sections 525 and 526 of the Code, and the procedure which they are intended to lay down. On the one hand it has been held in the cases cited in the margin1 that, if upon an application to file an award under Section 525, any objection, such as is mentioned or referred to in Sections 520 and 521, is taken to the award, the Court is not at liberty to inquire into the validity of such objection, but should stay its hand, refuse to file the award, and leave the party aggrieved to enforce it by regular suit.
7. On the other hand, the cases cited in the margin2 have ruled that when objections are preferred to the filing of an award under Sections 525 and 526, the Court is bound to inquire in to those objections, and to decide whether or not the award should be enforced.
8. By Section 526 an award when filed, 'takes effect as an award made under Chapter XXXVII,' and Section 522 prescribes the mode in which effect is to be given to an award. 'The Court shall proceed to give judgment according.to the award,' and 'upon the judgment so given a decree shall follow.' Then come the words: 'No appeal shall lie from such decree except in so far as the decree is, in excess of or not in accordance with the award.'
9. In Sashti Charan Chatterjee v. Tarak Chandra Chatterjee 8 B.L.R. 315, a Full Bench of this Court held, upon Section 327 of the old Code of 1859, that where there was no valid award, an appeal would lie against the decree made upon it; and a similar opinion was expressed in Joy Prokash Lall v. Sheo Golam Singh I.L.R. 11 Cal. 37.
10. It would seem to follow, therefore, that there is an appeal against a decree made upon an award-
(1) when the decree is in excess of the award;
(2) when it is not in accordance with the award; or
(3) when there is no valid award.
11. Now the objections made to the award in the present case may be summarized as follows:
(1) That the value of the property in suit was Rs. 500 only, and, therefore, that the application should have been made in the Munsifs Court and not in that of the Subordinate Judge.
(2). That the agreement of submission is vague and indefinite and does not clearly set out the matters in dispute.
(3). That the award is indefinite and merely an expression of the arbitrator's opinion; that there was in fact no decision.
(4). That the arbitrator took no evidence and proceeded in the absence of the objectors.
12. The Subordinate Judge found that the arbitrator had proceeded in accordance with the ikrarnamah in submitting the case to him for arbitration; that he had not exceeded his authority; and that his award was sufficiently clear to decide the points in issue. No ground, therefore, such as is mentioned or referred to in Section 520 or Section 521, having been shown against the award, he ordered it to be filed, and made a decree in accordance with it.
13. Assuming that in a proceeding under Sections 525 and 526, the Court has power to consider such objections as are mentioned in Section 520 or Section 521, of the objections summarized above the first and second do not fall under either section. The Subordinate Judge, before entertaining the application of the respondent, was bound Co satisfy himself that he had jurisdiction to entertain it. If the value of the property be below 1,000 rupees, he would have no jurisdiction to entertain the application. With reference to this objection he was bound to take evidence before assuming jurisdiction. This he has not done. Therefore, even if no appeal lies, we can interfere with the decision of the lower Court upon this point, because it has acted in the exercise of its jurisdiction illegally in assuming jurisdiction without taking evidence. Having regard to the second objection, which seems to us to be well founded, we are of opinion that we ought to interfere under Section 622. 3 We have referred to the terms of the ikrarnamah, and it appears to us to be vague and indefinite in not clearly laying down the powers of the arbitrator in dealing with the subject-matter in dispute. The passage which was intended to define his powers is as follows:
We, the declarants (all three parties), in order to set the aforesaid disputes and quarrels at rest, do appoint Sri Pandit Teknarayan Dasji, disciple of Sri Motiram Dasji, inhabitant of mohullah Kamchha, city Kashiji, district Benares, as a panch or arbitrator, and declare and give in writing that the said arbitrator would come to a decision in accordance with hurrah and with reference to possession; in respect of such Dih lands as are occupied by dwelling-houses according to kurrah and such as are held possession of without reference to kurrah: as also in respect of the property claimed in the suit brought in the Court of the Munsif of Begu Serai.
14. We have not been able to make out what powers were intended to be conferred upon the arbitrator by this passage.
15. The agreement, therefore, not clearly defining the powers of the arbitrator, we are of opinion that the award should not be allowed to be enforced under the provisions of Sections 525 and 526 of the Civil Procedure Code. We, therefore, set aside the decree of the lower Court, and direct the application of the respondent to be dismissed. The agreement executed by both parties being vague and indefinite, the appellants are, in our opinion, not entitled to costs in either Court.
1 C (1) Sree Ram Chowdhry v. Denobundhoo howdhry I.L.R. 7 Cal. 490 decided by Pontifex and Field, JJ.
(2) Huronath Chowdhry v. Nistarini Chowdrani I.L.R. 10 Cal. 74 decided by Garth, C.J., and macpherson, J.
(3) Ichamoyee Chowdhranee v. Prosunno Nath Chowdhry I.L.R. 9 Cal. 557 decided by Wilson and Macphersom, JJ. This view seems also to have found favour in a decision of a Full Bench of the Allahabad Court in Bhola v. Gobind Dayal I.L.R. 6 All. 186.
2 (1) Dutto Singh v. Dosad Bahadur Singh I.L.R. 9 Cal. 575 decided by Mitter and O'kinealy, JJ, following Dandehar v. Dandekars I.L.R. 6 Bom. 663 decided by Melvill and Pinhey, JJ., The same view was taken in Jones v. Ledgard I.L.R. 8 All. 340 by Straight, J. and apparently also by the Madras Court in Micharaya Guruvu v. Sadasiva Parama Guruvu I.L.R. 4 Mad. 319 decided by Turner, C.J., and Muttusami Aiyar, J.
3 Power to call for record of cases not appealable to High Court.
[Section 622: The High Court may call for the record of any case in which no appeal, lies to the High Court, if the Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law have failed to exorcise a jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity; and may pass such order in the case as the High Court thinks fit.]