L.S. Jackson, J.
1. The Munsif cursorily remarked upon the insufficiency of the stamp on which the petition of review was filed before the arbitrator. I should have thought that no stamp was required. He also thought that according to the provision of Section 378 of Act VIII of 1859 the order in rejection of the review was final. It seems to me clear that could not possibly be a ground of judgment in this case. [The learned Judge then alluded to the judgment of the lower Appellate Court and continued--]
2. It has been contended before us in special appeal that the lower Appellate Court had no jurisdiction to make this order, inasmuch as the Munsif having made a decree in accordance with an award of arbitrators, that decree was by law final. And Baboo Mohesh Chunder Chowdhry referred us to Sreenath Chatterji v. Koilash Chunder Chatterjee 21 W.R. 248 in which judgment was given by the late Chief Justice Sir Richard Couch, of which the head-note is to the effect that Section 327 of the old Code of Civil Procedure 'incorporates the provision in Section 325 as to the finality of the judgment given according to the award, and puts the award filed under Section 327, in the same position as the award filed under Section 325; where a Court files an arbitration award and passes a decree, that decree is final.' The question to be considered here was very fully considered by the Full Bench in Sashti Charan Chatterjee v. Taruck Chandra Chatterjee 8 B.L.R. 315. It is not very easy to ascertain what was the decision of the Full Bench in that case; because separate judgments were given, which did not all agree, but the opinion of the late Mr. Justice Norman, who was then acting as the Chief Justice, in which opinion I concurred, was this, that where there has been an award, and the decree passed by the Court below is in accordance with that award, that judgment is final; but where it can be shown that there was not in fact any award on which a judgment could be based, there is no final decree, and an appeal would lie. In this case the defendant had to show cause against the finality of the award, and he did show what appears to me to be a very satisfactory cause. He showed that the arbitrators, after making the award and after an interval of only a very few days, had expressed a doubt as to the correctness of the award by intimating their readiness to reconsider their decision. It may be observed that the award was not one of the whole number of arbitrators, but of four out of five; and even if we assume that in the reference to arbitration provision was made that in case of difference of opinion the decision should rest with the majority, still the fact that one of the number had dissented ought to be taken into account when it is seen that the remaining arbitrators expressed a readiness to reconsider their decision. It may very well be that but for the death of one of these four, and what took place consequently, there might have been a further award by the same arbitrators in which the conclusion would have been different from that arrived at on the 27th August. It was never, I think, the intention of the Act that the Court should bind parties by the result of a private arbitration when the arbitrators themselves plainly showed that they doubted the correctness of their decision. That, it appears to me, was an extremely strong and valid objection to the finality of the award one which tended to show that the award was no valid award, and therefore it was a matter which the lower Appellate Court could consider on appeal. I think, therefore, the Judge of the Court below was not in error in the decision which he arrived at in this case, and that this appeal ought to be dismissed with costs.
[Section 325: If the Court shall not see cause to remit the award or any of the matters
referred to arbitration for re-consideration in manner aforesaid,
Judgment to be accord- and if no application shall have been made to set aside the award,
ing to the award. or if the Court shall have refused such application, the Court
shall proceed to pass judgment according to the award or accord-
ing to its own opixiion on the special case if the award shall have been submitted to it in the
form of a special case; and upon the judgment which shall be so given decree shall follow and
be carried into execution in the same manner as other decrees of the Court. In every case in
which judgment shall be given according to the award, the judgment shall be final.]