W. Comer Petheram, C.J.
1. My answer to the question referred to the Full Bench is that, when an application is made to a Court for filing a private award, and objections to the validity of the award are raised in a verified written statement, and the objections are such as fall within Section 521 of the Code of Civil Procedure, the Court is not bound to hold its hand and reject the application, but must inquire into the validity of the objections raised, and thereupon determine whether the award shall be filed or not.
2. Before examining the cases on the subject, it will be well to see what are the provisions of the Code, by which the rights and liabilities, whatever they may be, are created.
3. Sections 506 to 522 create a system of procedure by which the matters in issue in a suit may, if the parties wish it, be tried by arbitration, and by which the judgment and decree in the suit must be in accordance with the award, unless it has been set aside in consequence of the misconduct of the arbitrators, the fraud of either of the parties, or because it was made after the submission had been superseded, the only ground of appeal from such a judgment being that the decree is in excess of, or not in accordance with, the award.
4. Sections 525 and 526 create a procedure by which, when no action is pending, matters in dispute may be referred to arbitration, and a mode by which, in my opinion, the award, when made, is to be enforced.
5. Section 525 provides that, when an award has been made under a submission by agreement, any person interested in it may make a written application to a Court to file it, which application is to be numbered and registered as a suit, and notice of it requiring them to show cause is to be given to all the other parties to the arbitration, any of whom may show cause on any or either of the following grounds:
A--(a) Where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration.
(b) Where the award is so indefinite as to be incapable of execution-
(c) Where an objection to the legality of the award is apparent upon the face of it.
B--(a) Corruption or misconduct of the arbitrator or umpire.
(b) Either party having been guilty of fraudulent concealment of any matter which he ought to have disclosed, or of wilfully misleading or deceiving the arbitrator or umpire.
(c) The award having been made after the issue of an order by the Court superseding the arbitration and restoring the suit.
6. If no such cause is shown against the award, it is to be filed and shall then take effect as an award under the provisions of Chapter XXXVII of the Code, that is to say, it takes effect as an award upon which judgment must be given, and upon which judgment a decree must follow in the suit which was, I think, for reasons which I will presently mention, commenced by the petition to file the award, which petition, by virtue of Section 525, takes the position of the plaint by which a suit is to be commenced.
7. The question upon which there are conflicting decisions in this Court is whether the provision in Section 526, that the award is to be filed unless cause is shown, means that it is to be filed unless some legal cause is proved to exist, why it should not be filed, or whether it means that it is not to be filed if it is merely asserted, by a verified statement or affidavit made by some person interested, that some such cause exists.
8. I now proceed to examine the cases to which we have been referred. They are : Sree Ram Chowdhry v. Denobundhoo Chowdhry I.L.R. 7 Cal. 490 Pontifex and Field, JJ. there held that no appeal lay from an order of a Subordinate Judge refusing to file an award under Section 525. Both the learned Judges expressed the opinion that the words 'The application shall be in writing and shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants' in Section 525 did not have the effect of converting the application into a suit for all purposes, but merely meant that for the purposes of the entry in the register of civil suits, and of the classification of the business of the Courts, and for these purposes only, the application is to be regarded as a suit; and Pontifex, J., in the course of his judgment said, 'I think it world be the duty of the Court without inquiring into the validity of the cause so shown to refuse the application to file the award, and to leave the applicant to his remedy by suit.' If this view is correct, and if Section 525 does not have the effect of converting the application into a suit, then it seems to me that, if an objection is made by any one, the award ought not to be filed; but the decision of the question on which the opinion is expressed was not necessary for the decision of the case, and I am unable to agree in that opinion. If the application to file the award is not converted into a suit for all purposes, it is not converted into one at all, for any but an administrative one, as defined by Field, J., and it must follow that the award cannot be enforced under the provisions of those sections, as there is no suit pending in which a decree can be made, and filing the award has no effect whatever, as even after it is filed, it can only be enforced by a regular suit, to be commenced by a plaint in the ordinary way, which could be done as well before it is filed as it could afterwards; and this is to hold that these two sections, 525 and 526, have no practical effect whatever. I understand that from the passing of the Act down to the present time, proceedings under these sections have been treated as suits, in this way, that when the award has been filed, judgment and decree have in all cases followed upon such filing without any question, and I think it would be impossible to hold now that all such decrees have been waste paper because they were not made in any suit.
9. The next case is that of Ichamoyee Chowdhranee v. Prosunno Nath Chowdhry I.L.R. 9 Cal. 557, where Wilson, J. held that, when it is shown, by written statement or affidavit or other verified statement, that the award is impugned as invalid, for any of the reasons contained in Sections 520 and 521, the Court is then bound to hold its hand and leave the parties to their remedy by suit. MACPHERSON J. agreed in setting aside the order in that case, but added that he would hesitate to say that when such grounds of objections are set forth in a verified petition or affidavit, the Court is to make no enquiry.
10. In Dutto Singh v. Dosad Bahadur Singh I.L.R. 9 Cal. 575, Mitter and O'kinealy, JJ. dissented from the opinion of Wilson and Macpherson JJ., and adopted that of Melville, and Pinhey, JJ., of the Bombay High Court, in the case of Dandekar v. Dandekars I.L.R. 6 Bom. 663, who had held that the term to 'show cause' is a technical term having a well-understood meaning; that it does not mean merely to allege cause, nor even to make out that there is room for argument, but both to allege cause and prove it to the satisfaction of the Court. In Hurronath Chowdhry v. Nistarini Chowdhrani I.L.R. 10 Cal. 74, (Garth, C.J., and Macpherson J)., the Chief Justice in the course of the judgment said: 'We are disposed to think that when an application is made to the Court to file an award, and an objection is made to the filing of it upon any of the grounds mentioned in Sections 520 or 521, the proper course for the Court to pursue is to dismiss the application and to leave the applicant to bring a regular suit to enforce the award, in which all the objections to its validity may be properly tried and decided.' Jones v. Ledgard I.L.R. 8 All. 340; Straight J., after considering all the authorities said: 'What I consider is required is that such party should by argument, or evidence, or both, show substantial materials to warrant the Court in arriving at a conclusion that the reasons referred to in Section 520 and Section 521 exist in the particular case.' Bindessuri Pershad Singh v. Jankee Pershad Singh I.L.R. 16 Cal. 482; the question is referred to in the judgment of Mitter and Beverley, JJ., but is not decided.
11. In the cases in this Court, in which it has been held that, when an objection is taken, the Court should refuse to file the award, the reason which induced the Judges to take that view seems to have been that in an action to enforce the award, all the objections to its validity could be more conveniently considered than in a proceeding to file it, but except in the case of Sree Ram Chowdhry v. Denobundhoo Chowdhry I.L.R. 7 Cal. 490, the Judges do not appear to have expressly considered the effect of the provision in Section 525, that the petition is to be registered as a suit, and that everything which could be pleaded as an answer to an action to enforce the award could be pleaded as an answer to the petition to file the award; so that, as far as I can see, the proceeding to enforce the award by petition is identical with a proceeding to enforce it by suit, except that in a proceeding by petition no appeal lies against the judgment, except on one of the grounds mentioned in Section 522, whilst in an action an appeal would lie against the judgment on those mentioned in Sections 520 and 521 as well. When it is borne in mind that the proceeding to tile the award is a mode of enforcing it 1 think that the words 'show cause' must have the meaning which was attributed to them by MELVILL, J. in the case which I have already quoted, as the cause to be shown is cause to be shown against a proceeding which is by the law converted into a suit, and I do not think it could be the intention of the Legislature that such a proceeding could be defeated by a mere assertion, the truth or sufficiency of which was not admitted, and which had not been established.
12. For these reasons my answer to the first part of the question referred to us is in the negative, to the latter part in the affirmative. The result is that the rule will be made absolute. We make no order as to costs.
13. The question raised in this matter is whether, in an award made without the intervention of a Court, and presented to a competent Civil Court to be filed, if one of the parties to the arbitration, on being called upon under Section 526 to show cause, takes an objection falling within Section 521 of the Code of Civil Procedure, 1882, the Court is bound to decide on such objection or should stay its hand and refer the parties to a suit.
14. Section 525 directs that such an application should be numbered and registered as a suit between the parties to the arbitration, and it further directs that notice should be given to such parties, other than the applicant, to show cause why the award should not be filed. Section 526 declares that if no ground, such as is mentioned or referred to in Section 520 or Section 521, is shown against the award, the Court shall order it to be filed, and such an award shall then take effect as an award under the provisions of Chapter XXXVII of the Code, that is, it shall take effect as a decree. It has been contended, under the authority of some cases of this Court, that if such an objection be raised, the Court should stay its hand, and refer the parties to a suit. By this I understand that it should dismiss the application which is declared by the law to be numbered and registered as a suit. These, however, are points which must necessarily arise on such an application, and form the subject-matter of issues to be decided, unless it is contemplated that the matter should become a decree only by consent of the parties. I do not agree in the view of the law which would place it in the hands of any party to an arbitration to defeat the object of the arbitration and the law by merely making an objection falling within Section 520 or Section 521, however groundless or dishonest that objection may be if subjected to investigation. As remarked in Dandekar v. Dandekars I.L.R. 6 Bom. 663, 'It would be unreasonable to suppose that the Legislature intended that a mere allegation of the existence of cause without any inquiry whatever into the validity of the cause alleged would be sufficient to prevent the filing of an award.' Their Lordships of the Privy Council in Chowdhry Murtaza Hossem v. Bechunniasa L.R. 3 I.A. 209 : 26 W.R. 10 considered objections of this nature in a case under the Code of 1859, which, however, was not dissimilar to the present case. The objection taken in this case was not taken before their Lordships, but we cannot hold that it was not present to their minds. It was held that any ground which would be fatal to an award on an application to the Courts of England could in India be taken under the Code of 1859, and the objections taken were duly considered in deciding that case. It seems to me that the slight alteration of the law made by Section 526 of the Code of Civil Procedure, 1882, was, as was held by Straight, J., in Jones v. Ledgard I.L.R. 8 All. 340, especially designed to give full effect to that judgment. I observe that the case in the Privy Council was not cited in any of the cases on this subject, except in that of the Allahabad Court.
15. So far, therefore, I think that on cause shown on any of the grounds mentioned in Section 520 or Section 521, the Court is bound to determine the objections raised. But we have been also required to consider what course should be followed if the objection is taken that the matters in dispute were never submitted to arbitration, whether it is open to the Court to consider such an objection, or whether it should rather refer the parties to a regular suit. It is unfortunate that the Code should be obscure on such a point. But the fact that it refers only to objections taken on the grounds mentioned in Section 520 or Section 521, seems to me to show that it proceeds on the assumption that a submission to arbitration has been made so as to enable the Court to deal with it under Sections 525 and 526. It requires the Court to deal with objections only to the conduct of the arbitrators, the conduct of the parties while the matter was under arbitration, and the award itself; and it therefore seems to contemplate that in a proceeding of this description the Court should confine itself to these matters; an objection that there was no submission to arbitration seems to deprive the Court of jurisdiction to proceed under Sections 525 and 526, and to require that the matters in dispute should be adjudicated in a suit.
16. The question referred in this case is no doubt Limited to one point which arises under Section 526 of the Code; namely, whether, when an application is made to file a private award, and objections are raised to the filing of the award, which objections are such as fall within Section 521 of the Code, the Court is bound to hold its hand and reject the application, the rulings to that effect--Hurronath Chowdhry v. Nistarini Chowdhrani I.L.R. 10 Cal. 74, Ichamoyee Chowdhranee v. Prosunno Nath Chowdhri I.L.R. 9 Cal. 557, and Sree Ram Chowdhry v. Denobundhoo Chowdhury I.L.R. 7 Cal. 490--being thus in this question referred to the Full Bench.
17. Although, according to the terms of the rules regulating references to a Full Bench, this question alone can be authoritatively answered, I think it would be unsatisfactory (as it might lead to misapprehension) to abstain in answering this question from all reference to the wider question how far, in the case of proceedings under Sections 525, 526, the Court ought to stay its hand upon objection made to the filing of the award. The decisions above mentioned are founded chiefly on the ground that proceedings under these sections as they have the character given to proceedings under the earlier sections of Chapter XXXVII, of absolute finality without appeal, cannot have been intended to involve the final determination of questions of such difficulty as may arise under Sections 525, 526. That I understand to have been the principal, though not the only, reason of those decisions. Having regard to the decisions which have been cited, and to the general scope of the sections of this chapter, I agree in the opinion that, so far as relates to questions of the kind which fall within Section 531, the Court, under Sections 525, 526, was intended to deal with them, and to do so finally, and that the argument founded upon the denial of any right of appeal has been carried too far when invoked as a reason why the Court should not, under Sections 525, 526, deal with questions arising under Section 521. But I think it would be unsatisfactory in saying this to leave without any notice the question how far the argument founded on the denial of appeal is applicable to proceedings under Sections 525, 526; since, if this were done, it might possibly be supposed that all questions of every kind relating to a private award are, in our opinion, such as must be dealt with under these sections; and this, I think, ought to be guarded against.
18. The circumstances under which the provisions of Section 526 become applicable, are stated in Section 525. They are--
First.--That a matter has been referred to arbitration without the intervention of a Court of Justice.
Second.- That an award has been made.
Third.--That an application has been made that the award be tiled in Court.
fourth.-- -That notice to show cause has thereupon been given to the parties to the application other than the applicant.
19. These conditions having been fulfilled, the case stands upon the same footing as one in which, under the earlier sections, the fact of the submission and of the making of the award being beyond question, the only matters of dispute that can arise are those contemplated by Sections 520 and 521.
20. Under such circumstances, the Court is in nearly the same position, in respect of its power to do justice between the parties, as though the arbitration had been had upon a reference made by order of Court under Section 508, or upon an agreement to refer filed in Court and an order thereon under Section 523.
21. There are, no doubt, differences between the provisions relating to an arbitration held under an order of Court, and those on a private reference, and notably that Section 513 does not apply to the latter class of cases. But I think that upon the true construction of Section 526, it must be held that the Legislature intended to give to awards made in private arbitration the same degree of finality as is given to awards made in pursuance of an order of reference provided, first, there be no question of the fact of the reference, having been really made, second, and none that an award has been made under it.
22. These two last conditions seem do me to be essential preliminaries necessary before Section 526 can apply. I do not see that the Sections 525, 526, provided for cases in which the factum of the reference or of the award under it is challenged, and in the absence of express provision to that effect in the Code, I do not think it can be held that these questions can be determined by the Court acting under these sections.
23. I do not think that the fact that an application to file an award alleged to have been made upon an alleged reference is to be filed and numbered as a suit, does, by implication making the proceeding a suit for all purposes, give the Court power to determine, without appeal, whether the alleged reference has been actually made, and the alleged award has been actually made under it.
24. I think that as to both these matters, and those which may arise in reference to them, the reasoning of the Bombay High Court in the case of Samal Nathu v. Jai Shankur Dalsukram I.L.R. 9 Bom. 254 may be applied : and that if either the reference or the award is challenged, the parties must be left to a regular suit, which I think will certainly well lie on the award, if actually and duly made; Palaniappa Chetti v. Rayappa Chetti 4 Mad. H.C. 119 and Kota Seetamma v. Kollipurla Soobbiah 8 Mad. H.C. 81.
25. I think that, if no question arises as to the fact of the reference, or as to the fact of the award, and the questions raised are only those which fall within Section 521 of the Code, it is the duty of the Court to inquire into and determine the validity of such objections. But I think that, if either the fact of alleged reference, or the fact of the alleged award, or both, be denied, then the Court has not, under Sections 525, 526, the power of deciding upon the dispute between the parties: it should reject the application to file the award and leave the applicant to his remedy by suit.
26. The question referred to us must, I think, be answered as to the first part of it in the negative, and as to the second part of it in the affirmative.
27. I agree with Mr. Justice Pigot, and would only add a few words. The direction that the application 'shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants' does not, I think, in itself indicate that the application is to be treated as a suit in which all the questions which might arise on the application are to be tried and determined. Section 931 and 529 of the Code contain a similar direction, but there is a further provision that the cases referred to in each of those sections should be tried as if a suit had been instituted. Prom the absence of any such provision in connection with Sections 525 and 526, and from the specification of the particular grounds on which cause may be shown, and which are obviously not exhaustive, it may be inferred that the power of the Court in dealing with the application is limited, and limited to the grounds referred to in Section 526. In this view an objection that there was no submission, or that the award was not the award of arbitrators, would, I think, be fatal to the application, and the Court would have no power to inquire into it. But if the objection taken is such as is referred to in Section 520 or 521 it seems to be intended that it should be inquired into and determined in the same way as if it had been taken to award made under a reference by the Court and filed under Section 216. Otherwise there is no apparent reason for limiting the grounds on which cause may be shown to the grounds specified in Section 526.
28. I agree with the Chief Justice in the answers he proposes to give to the questions referred to the Full Bench.
29. As to what may be the true import of the expression 'if no ground such as is mentioned or referred to in Section 520 or 521 be shown against the award,' as occurring in Section 526 of the Code, there is considerable divergence of opinion, as set out in the order of reference.
30. Section 526 of the Code provides that when any person interested in a private award is desirous of enforcing it, he may apply to the Court of the lowest grade having jurisdiction over the matter to which the award relates, that the award be filed in Court. The application when presented shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants; and the Court shall then call upon the opposite party to show cause why the award should not be filed. Section 526 provides that if no ground such as is mentioned in Section 520 or 521 be shown against the award, the Court shall order it to be filed; and such award shall then take effect as an award made under the provisions of the Chapter XXXVII, i.e. an award made through the intervention of the Court. On turning to Section 522, which relates to such an award, we find it laid down that if the award is accepted, judgment shall be given in accordance therewith, and upon the judgment so given a decree shall follow.
31. When therefore Section 526 provides that the award shall take effect as a decree, 1 take it that judgment shall be passed by the Court, and a decree shall follow as in Section 522. When such a decree is made, the same limitation as to appeal, as applies to decrees made upon awards through the intervention of Court, equally applies to it. In this view of the matter the proceedings taken upon the application, which is registered as a suit, may rightly be regarded as proceedings taken in the suit. When, however, the Court refuses to file the award, such order of refusal is not a decree, and is not open to appeal. In this event, it may well be doubted whether the proceedings could be regarded as proceedings in a suit, properly so called.
32. But however that may be, the Legislature, by providing that the application shall be registered as a suit between the applicant as plaintiff and the other parties as defendants, and that the award, when ordered to be filed, shall take effect as a decree, has, I think, clearly indicated that the proceedings taken upon the application should take the form of a suit, and should be of the same character as in a suit properly so called; and the question thereupon arises, what is the duty of the Court when the defendants appear and allege certain grounds against the award : whether it should inquire into and determine the validity of the grounds, or whether it should at once put an end to the proceedings by declining to proceed any further with the matter. In the case of Sashti Charan Chatterjee v. Tarak Chandra Chatterjee 8 B.L.R. 315 decided by a Full Bench of this Court, Norman, Chief Justice, with reference to private awards, observed as follows: 'I am disposed to think that an award filed under the provisions of Section 327 stands in precisely the same position as an award submitted to the Court under Section 320. In both cases before passing final judgment the Court is empowered by Section 322 to modify or correct the award; by Section 323 to remit the award for reconsideration, first, if the award has left undetermined some of the matters referred to arbitration or determined matters not referred to arbitration; secondly, if it is so indefinite as to be incapable of execution; thirdly, if an objection to the legality of the award is apparent on the face of the award: and lastly, by Section 324 the Court is empowered to set the award aside in certain cases.'
33. Whether these observations could be altogether supported is open to doubt, having regard especially to the decision of the Privy Council in the subsequent case of Chowdhry Murtaza Hossein v. Bechunnissa L.R. 3 I.A. 209 : 26 W.R. 10 to he hereafter referred to. But that is the view which was expressed in the case of Sashti Charan Chatterjee v. Tarak Chandra Chatterjee 8 B.L.R. 315.
34. When an objection is raised to the legality of an award made through the intervention of the Court, the Court, I take it, is bound to investigate into the truth or otherwise of the objection under Sections 520 and 521 of the Code,--and the question is whether the same rule ought not to apply in the case of a private award, when a like objection is raised before the Court.
35. If the question bad arisen with reference to the old Procedure Code (Act VIII of 1859), I apprehend that there would be no difficulty upon the authorities in answering the question. In Section 327 of the old Code, the words were 'if no sufficient cause be shown against the award, the award shall be filed, and may be enforced as an award made under the provision of this chapter.' The observations of Norman, Chief Justice, in the Full Bench case of Sashti Charan Chatterjee v. Tarak Chandra Chatterjee 8 B.L.R. 315 already referred to, and the judgment of the Privy Council in the case of Chowdhry Murtaza Hossein v. Bechunnissa L.R. 3 I.A. 209 : 26 W.R. 10; are, I think, conclusive to show that under the old Procedure Code, the Court would be bound to investigate the question raised by the petition of the defendant, and thereupon to determine whether the award should be filed or not. In the case of Chowdhry Murtaza Hossein v. Bechunnissa, which was a case of a private award, the Judicial Committee, although they were of opinion that the earlier sections of Chapter VI of the old Code, relating to awards made through the intervention of the Court, were not incorporated into Section 327, still, in construing the words 'sufficient cause' as occurring in the said Section 327, held that those words 'should be taken to comprehend any substantial objection which appears upon the face of the award, or is founded on the misconduct of the arbitrators, or on any miscarriage in the course of the proceedings, or upon any other ground which would be considered fatal to an award on an application to the Courts in this country;' and the Judicial Committee, treating the proceedings as if they were in a suit, examined fully into the objections raised by the defendant.
36. It seems to be probable that the Legislature, having in view the observations of the Judicial Committee in the case of Chowdhry Murtaza Hossein v. Bechunnisa, expressly incorporated (as I understand it did incorporate) the earlier Sections 520 and 521 of the present Code into Section 526, and when this section says: 'if no ground such as is mentioned in Sections 520 or 521 be shown against the award,' I think that the Legislature meant to lay down that if no such ground is established, the Court shall order the award to be filed. I cannot lead myself to believe that the Legislature, while they incorporated Sections 520 and 521 into Section 526, and while they provided that the application is to be registered as a suit between the applicant as plaintiff and the opposite party as defendant, meant to alter the whole scope of Section 327 of the old Code and to limit the functions of the Court under Sections 525 and 526 of the present Code in such a way that the Court should have no authority to inquire into and determine the validity of the objections raised by the defendant.
37. I agree in the view expressed by the Bombay High Court in the case of Dandekar v. Dandehars I.L.R. 6 Bom. 663. Melville, J., in the course of his judgment in that case observed: 'Moreover, it would be unreasonable to suppose that the Legislature intended that the mere allegation of the existence of cause without any inquiry whatever into the validity of the cause alleged should be sufficient to prevent the filing of an award. This would be to render the filing of the award impossible in almost any case;' and later on 'The term 'to show cause' is a technical term having a well-understood meaning. It does not mean merely to allege cause, nor even to make out that there is room for argument, but both to allege cause and to prove it to the satisfaction of the Court. We think we may safely say that the term is used in this sense in every other part of the Code in which it occurs (e.g., in Sections 479 and 485), and we do not see how we should be justified in putting a different construction upon it in Sections 525 and 526.' I entirely agree in these observations. This case was followed in this Court in two cases in Dutto Singh v. Dosad Bahadur Singh I.L.R. 9 Cal. 575 and Rung Lall v. Hem Narain Gir I.L.R. 11 Cal. 166 and in the Allahabad Court in Jones v. Ledgard I.L.R. 8 All. 340.
38. It has been said that a suit upon the award is the right form of action in which objections as to the validity of the award may properly and effectually be gone into, and that when any objection is raised under Section 526, the Court should refer the parties to a regular suit. I doubt, in the first place, whether a separate suit would lie to enforce an award if the application to file it can be dealt with under Section 526, and if it has been refused, though no doubt a suit being brought upon the original right the award may be referred to as evidence in support of that right. But however that may be (and it is perhaps unnecessary to express any opinion upon that question in this case), I do not see why, if the Legislature has provided a procedure under Sections 525 and 526 to enforce an award, the parties should be driven to another suit.
39. Whether, if an objection is raised upon the score that there was no submission to arbitration, or that there was no award at all, the Court would have jurisdiction to deal with the mutter, is a question which does not arise in this reference, and I therefore refrain from expressing any opinion upon it. I confine myself to the question as referred.