Richard Garth, C.J.
1. I have had some doubt whether we have any right to entertain this appeal; but after considering the authorities, I think an appeal lies.
2. It is not easy (as observed by Jackson, J.), to ascertain precisely what was the decision of the Full Bench in the case of Sashti Charan Chatterjee v. Tarak Chandra Chatterjee 8 B.L.R. 315 but it seems to me that the majority of the Judges at least decided this that when an award has been made and judgment is given by the first Court in accordance with that award, the judgment is final--(see Section 325 of the old Code, corresponding with Section 522 of the present Code), but that when there is no award, that is no legal award, then the judgment of the first Court is open to appeal. It seems to follow from this, that when the question is, whether the award is a legal award or not, an appeal lies from the judgment.
3. And that, as it seems to me, is the case here. The question raised is, whether the three arbitrators under the circumstances had any power to make an award, or, in other words, whether the award which they made is a valid one. The first Court determined that it was valid, and gave judgment accordingly for the defendant No. 1; but the plaintiff appealed to the District Judge upon the question of the validity of the award, and he has reversed the decision of the Munsif, and declared the award invalid.
4. As he has decided this on a point of law, the defendant No. 1 comes to this Court on second appeal, and I think he has a right to do so. It now appears, that the question between the parties is this: The case was referred to the arbitration of five persons, but with a proviso that in case two of the arbitrators should be absent, the other three might make the award.
5. Now What occurred was this: Two of the arbitrators, it appears, were the pleaders on either side; and it was considered that as these gentlemen had acted as advocates, they could not with propriety act as arbitrators, so they ceased, (apparently with the consent of both parties), to act as arbitrators, and acted, as they had done before, as advocates on either side.
6. It seems to me, that this was virtually absenting themselves from their post as arbitrators; and as this was done apparently with the concurrence of the parties, I consider that the award made by the remaining three arbitrators was valid.
7. I think, therefore, that the decree of the lower Court should be reversed, and that of the Subordinate Judge restored with costs to the plaintiff in both Courts.
8. I concur in decreeing this appeal. I much doubt whether the Judge was right in entertaining the appeal; as however he did entertain it, he was I think clearly wrong in holding the award to be invalid.
9. The reference clearly contemplated a decision by three out of the five arbitrators, if two were unable to attend. Two of them took no part in the arbitration with apparently the concurrence of the parties. I see no ground for holding the award to be invalid.