Lawrence H. Jenkins, K.C.I.E. C.J.
1. In my opinion, no appeal lies in this case. It has to be seen first what is that from which the present appeal is preferred. It is from the judgment pronounced and the decree made on the 13th day of March 1911. Now, what was the decree made on that day? It is a decree whereby it was declared that the award therein mentioned ought to be carried into effect and the same was ordered and decreed accordingly. The judgment was the judgment on which that decree followed.
2. Then how did the judgment and decree come to be pronounced and passed? It was in compliance with Rule 16 of the Second Schedule to the Code of Civil Procedure. That rule provides that '(1) Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration in manner aforesaid, and no application has been made to set aside the award, or the Court has refused such application, the Court shall, after the time for making such application has expired, proceed to pronounce judgment according to the award. (2) Upon the judgment so pronounced a decree shall follow, and no appeal shall He from such decree except in so far as the decree is in excess of, or not in accordance with, the award'. There, therefore, is an explicit provision that from the decree there should be no appeal, and that provision is, to my mind, conclusive as to the power of appeal from the decree as such, notwithstanding the provisions in Clause 15 of the Letters Patent of this Court. But it is sought to escape from the provisions of Rule 16 by suggesting either that there was no award or that there was an application to set aside the award, and from the determination of that application, at any rate if it was adverse to the present appellants, an appeal would lie. I fail to see how it can be said, in view of the language used in Rule 15 that there was no award, because that rule deals explicitly with the position of an award having been made after the expiration of the period allowed by the Court, and it does not, as the Code of 1882 did, provide that such an award shall not be valid, but that such an award must be set aside, so that it seems to me that it cannot be said that there was no award. The most that could be said is that this award was liable to be set aside.
3. But if it be said that there is a right of appeal from the order refusing to set aside the award, the answer is that this is not an appeal from such an order. The appeal is from the judgment and decree of the 13th of March 1911, that being the only judgment and decree with which the appellants profess to be dissatisfied. I am unable to find anything that justifies the view that the decree of the 13th of March was in any sense an order under Rule 15. Had it been such an order, then we should have had to consider whether an appeal would lie under the Letters Patent. In the view I take no such question arises.
4. The result is that this appeal must be dismissed with costs.
5. I agree