1. The question referred for the decision of the Full Bench in this case is, whether when an application has been made under Section 525 of the Code of Civil Procedure, and notice has been given to the parties to the alleged arbitration (other than the applicant), the jurisdiction of the Court to order the award to be filed and to allow proceedings to be taken under it, is taken away by a mere denial of the reference to the arbitration on an objection to the validity of that reference. The affirmative of the proposition involved in the reference has no doubt been decided by more than one Division Bench of this Court, and it further has the support of the opinion expressed, though unnecessarily for the purposes of their decision, by certain members of a Full Bench Court in the case of Surjan Raot v. Bhikari Raot (1893) I.L.R. 21 Cal.213; see 224. There is, however, no authority on the point by which we are bound, so that it is open to us to consider the question on the words of the Code itself, apart from previous decision. The Sections of the Code more directly governing the present case are Sections 525 and 526, which are in these terms:
2. Section 525,--'When any matter has been referred to arbitration without the intervention of a Court of Justice, and an award has been made thereon, any person interested in the award may apply to the Court of the lowest grade having jurisdiction over the matter to which the award relates, that the award he filed in Court.
3. ' 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.
4. ' The Court shall direct notice to be given to the parties to the arbitration other than the applicant, requiring them to show cause, within a time specified, why the award should not be filed.'
5. Section 526.--'If no ground, such as is mentioned or referred to in Section 520 or Section 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 this chapter.'
6. Now, according to a literal reading of Section 525, two conditions are requisite to warrant an application that an award be filed in Court: first, the matter must have been referred to arbitration without the intervention of a Court of Justice; second, an award must have been made thereon. It would, therefore, seem, on general principles, that the existence or non-existence of each of those conditions is a matter for enquiry and adjudication. It is difficult to see how the Court can ascertain whether or not such an award as is mentioned in the section has been actually made, without first ascertaining, if the matter be disputed, whether or not there has been such a reference as is mentioned in the section. It is urged that the section presupposes the existence of a submission or reference to arbitration, and that if this be disputed, the Court cannot go into the matter, but must leave the parties to have the factum or otherwise of reference decided in an independent suit. The practical effect of such contention, if sound, would be that any party to a reference against whom an adverse award has been made, has only to allege that there was no reference, and he can throw the matter over and paralyze the operation of Sections 525 and 526 of the Code. I can scarcely think this was the intention of the Legislature, nor do I think the language of the section warrants such a contention. It is difficult to see why the Court, on an application under Section 525, can go into the delicate questions indicated in Sections 520 and 521, and yet is unable to go into that of whether or not there were any reference to arbitration, which is the substratum of the whole matter, and upon which the summary jurisdiction under Section 525 is based. It seems a rather odd conclusion that the Court may go into questions which may result in the award being set aside, and yet cannot go into the question of whether or not there has been any valid reference to arbitration. It has however been urged before us that this literal interpretation of this section must be discarded, because, it is contended, there would be no right of appeal from an adjudication on the factum of reference. This by itself, even were the contention well founded, would not be sufficient reason for withholding from clear and unequivocal language its ordinary meaning, for the function of the Court is to expound the Act as it stands according to the plain sense of the words used. Moreover, any argument drawn from the alleged absence of any right to appeal loses its force, in view of the fact that the same consideration would apply to the adjudication as to the existence of an agreement to refer on an application under Section 523, and also as to those matters of far greater difficulty and intricacy indicated in Section 521, and referentially incorporated into Section 526, though undoubtedly they would have to be. investigated and determined. But in fact the whole basis of this argument, in my opinion, has no existence, for I think the right of appeal exists. In the recent case of Kali Prosanno Ghose v. Rajani Kant Chatterjee (1897) I.L.R. 25 Cal. 141 a Division Bench of this Court has held that an appeal will lie against a decree given in accordance with an award under Section 522 of the Code, when the award upon which the decree is based is not a valid and legal award. An award cannot be a valid or legal award if there has been no submission to arbitration, and how then can the Court go into the question of whether or not it is valid or legal if it cannot go into the question of whether or not there were a submission to arbitration. I do not think that Section 522 contemplates there should be no appeal where the validity of the award is challenged. Another argument addressed to the Court on behalf of the opposite party was, that the question of whether or not there had been any submission to arbitration could not be determined, on the ground that under Sections 525 and 526 the Court could only investigate such matters as are indicated in Sections 520 and 521. This is a somewhat dangerous argument, for, if it were to prevail, the result would be that the existence and validity of the agreement to refer cannot be questioned, and the order to file the award would be a matter of course. It will be noticed that under Section 526 it is compulsory on the Court to file the award, unless some such ground as is mentioned in Sections 520 and 521 be shown against it. The result is that, in my opinion, the jurisdiction of the Court to order an award to be filed, and to allow proceedings thereunder, is not taken away by a mere denial of the reference to arbitration. This view is consistent with the decision of a Full Bench of the Allahabad High Court in the case of Amrit Ram v. Dasrat Ram (1894) I.L.R. 17 All. 21.
7. I think, however, that this application must be treated as an appeal, the time for appealing not having expired, and not as an application under Section 622 of the Code, and the petitioner must undertake to pay any additional Court-fee there may be on the footing of its being an appeal.
8. I agree entirely with the view expressed by the learned Chief Justice.
9. I am of opinion that the question referred to us must be answered in the way proposed by the Chief Justice, and for the reasons expressed in his judgment, and I agree with him as to the mode in which the case should be dealt with.
10. I regret that I must in this case dissent from the decision of the other learned Judges of this Bench. In my opinion Section 525 of the Code presupposes that there has been a reference to arbitration and an award made thereon, and the Court under Section 526 must deal with the award on that footing, if it can do so, having regard to the nature of the cause shown. If it cannot, if for instance the cause shown is that there was no submission and consequently no award, the Court must hold its hand and refuse the application.
11. Section 525 does not, it is true, refer to an admitted reference or an admitted award, but the Legislature might well refrain from using language which was too suggestive. If stress is to be laid on this circumstance, equal stress must be placed on the absence of any indication that when the question of submission is a question in dispute, the Court is to determine on evidence the fact of a submission. I may point out that an express provision to this effect is to be found in Section 531 when an alleged agreement to refer is filed by one of the parties.
12. Section 526 is silent as to the course to be adopted if, in showing cause, there is a denial of any submission, and I see nothing in that section or in Section 525 to prevent the Court from refusing the application on that ground without enquiring into and deciding the disputed fact. The cause to be shown under Section 526, and established according to the decision of the Full Bench in Surjan Raot v. Bhikari Raot (1893) I.L.R. 21 Cal. 213. is some cause as is mentioned or referred to in Section 520 or 521, but such cause could only be shown when there was an actual and not merely an alleged award. It would, moreover, be contrary to established practice and to all ideas of justice and fairness that when one party alleges and the other denies a submission, the burden of proof should be placed on the party denying. It is the party objecting who is to show cause, and this Court has held that to show cause means to establish cause.
13. The corresponding Section (321) of the Code of 1859 enacted that if no sufficient cause was shown against the award, the award should be filed. The cases Iswari Prosad v. Bir Bhanjan Tewari (1871) 8 B. L. R. 315: 15 W. R. (F. B.) 9 and Chowdhri Murtaza Hossein v. Mussamat Bibi Bechanissa (1876) L. R. 3 I. A. 209 show that there was a difference of opinion as to what those words meant. The intended scope of the section has not been made very clear in the present Code, but the altered language of Section 526, coupled with the absence of any extending provisions, indicate to my mind that the Courts were intended to deal with actual and not with disputed award. Sections 525 and 526 must be read together, and so reading them they bear in my opinion the construction which I have put upon them. This construction is, moreover, consistent with what one may reasonably suppose to have been the intention of the Legislature that when the tribunal undisputedly chosen by the parties has made its award, the Court should determine in a summary way, without any right of appeal and having regard only to matters arising on the award on the conduct of the parties or the arbitrators in the making of it, whether effect should be given to the award. In determining the scope of these sections one cannot overlook the fact that finality is given to the decree which by the operation of Sections 526 and 522 is to follow on the filing of the award, except, in so far as the decree is in excess of or not in accordance with the award. No appeal is allowed against an order for the filing of the award, and when such an order is made, the award filed is to take effect as an award made under the provisions of Chapter XXVII. That is to say, the Court is to give judgment according to the award, which must of necessity be the award filed; upon that judgment a decree is to follow, and no appeal is to lie against that decree except in so far as it is in excess of or not in accordance with the award. When the decree is in strict accordance with the award filed, I fail to see that there is any right of appeal against the decree. If the Legislature intended that the Court of the lowest grade having jurisdiction in the matter should decide disputed questions of submission, I cannot believe that an appeal from the decision would have been disallowed. Possibly an appeal might lie on the ground that the Court had made a decree which it had no jurisdiction to make, but that would mean that the Court had decided matters which it was not competent to decide, and such an appeal would be very different from an appeal against the decree, on the ground that the decree was wrong by reason of an erroneous decision on a question of fact antecedent to the award with which alone the Courts can deal under Sections 525 and 526.
14. A Full Bench of the Allahabad High Court held in Amrit Ram v. Dasrat Ram (1894) I.L.R. 17 All. 21 that the words in Section. 526 ' if no ground such as is mentioned or referred to in Section 520 or Section 521' covered all objections relating to the submission and the authority of the arbitrators to act. If this decision is right my view of the section is wrong. I must however with due respect dissent from the decision. It has been already dissented from by Farran, C.J., and Strachey, J.-in Tejpur v. Mahomed Jammal (1896) I.L.R. 20 Bom. 596 and I cannot do better than adopt the reasons of those learned Judges for holding that Section 526 bears no such construction as that It is argued, however, that as the application under Section 525 is to be registered and numbered as a suit between the applicant as plaintiff and the other parties as defendants, it must be dealt with as a suit, and that the Court has at the least an implied power to try and decide all matters arising on the application. I think no such implication rises from that direction standing alone and without the addition of further words such as are to be found in Section 331 and in Section 529 read with Section 531, and having regard to the language used it would, in my opinion, be going very far to hold that the provisions of the Procedure Code relating to suits apply to applications under Section 525, and that every such application is to be dealt with as a suit. If, moreover, the application is to be dealt with as a suit culminating in a decree one way or the other, one is driven to what seems to me to be an absurd conclusion. The Court makes an order refusing the application on one or other of the grounds referred to in Section 526 after adjudicating on the objections which come within that section. The order is a decree as defined in Section 9 of the Code, for as it is an adjudication on a right claimed on a defence set up which, so far as regards the Court expressing it, decides the suit. An appeal would lie against the decree, an appeal not being prohibited by any provision of law. If, however, the Court after a similar adjudication overrules the objections coming under Section 526 and makes an order that the award should be filed, the order is not an appealable order, and it is not a decree because it does not finally dispose of the suit. Obviously also no appeal would lie against the decree which is to follow on the filing of the award, if the decree was in accordance with the award.
15. It would follow, therefore, that if the application was refused on any ground set out in Section 521, the plaintiff would have a right of appeal, but if the application was allowed, the objections under that section being overruled, the defendants would have no right of an appeal. I am unable to believe that any such result as this was intended or contemplated and I must decline to put upon the sections a construction which would lead to it, the more especially as I think they bear a more reasonable construction by which such a result is avoided.
16. The consequence would, of course, be much more serious, if there was a dispute as to the submission. In that case, if the Court held there was no submission and refused the application on that ground, the plaintiff would have a right of appeal. If it held that there was a submission and made a decree in accordance with the award, the defendant, in the view which I take and have already expressed, would have no right of appeal.
17. The real objection to putting a limited construction on the two sections seems to be that the defendant by denying that there was any submission could prevent the operation of the sections. I presume that the applicant would have to support his application by affidavit on verified petition, and that the defendant when called on to show cause must show cause in the same sort of way. His denial, therefore, if false, would not be without risk to himself. Nor do I see that in my construction of the sections any serious hardship or inconvenience is involved. The refusal of the application on the ground that there is a dispute as to the factum of a submission means only this, that the special and summary procedure provided by these sections is not applicable to the case. The applicant is not left without a remedy, he can bring a suit to enforce the award, and in that suit all questions upon which the parties are at issue would be tried in the ordinary way and with the ordinary right of appeal.
18. The cases in this Court seem to me to be all one way and in favour of the view I have expressed. I need only refer to Ichamoyee Chowdhranee v. Prosunno Nath Chowdhri (1883) I.L.R. 9 Cal. 557 decided by Wilson, J., and myself, and to Bijadhur Bhugut v. Monohur Bhugut (1883) I.L.R. 10 Cal. 11 decided by Mitter and Tottenham, JJ. The head-note in the former case does not seem to be quite accurate. Wilson, J., although he went further than I was disposed to go, says this: ' There is an additional objection to the present order because the applicant when before the Subordinate Judge denied altogether that the submission was binding upon her, and Section 525 seems to me to have no application to a case in which the submission or its binding effect is in dispute.' Then there is the opinion expressed by Prinsep and Plgot, JJ., and in which I concurred, in the Full Bench case Surjan Raot v. Bhikari Raot (1893) I.L.R. 21 Cal. 213. That case overrules some of the decisions of this Court in which other learned Judges had taken a still more restricted view of the powers of the Court in dealing with applications under Section 525, and although the opinion above referred to on the question now raised has not the force of a decision, it was deliberately formed and expressed in order to prevent the decision of the Full Bench being carried further than it was intended to go.
19. The Bombay High Court has practically adopted the same construction in Samal Nathu v. Jaishankar Dulsukram (1884) I.L.R. 9 Bom. 254 and Tejpur Dew Chand v. Mahomed Jammal (1896) I.L.R. 20 Bom. 596.
20. The decision of the Madras High Court in Husananna v. Linganna (1894) I.L.R. 18 Mad. 423 when examined will be found to be no authority on the question now raised. On the other side there is the decision of the Allahabad High Court already referred to.
21. It follows from what I have said that I entirely dissent from the conclusion that an appeal lies in this case.
22. The question for the determination of which this case has been referred to a Full Bench is
Whether when an application has been made under Section 525 of the Civil Procedure Code, and notice has been given to the parties to the alleged arbitration other than the applicant, the jurisdiction of the Court to order the award to be filed, and to allow proceedings to be taken under it, is taken away by a mere denial of the reference to arbitration on an objection to the validity of the reference.
23. The facts of the case upon which this question arises are shortly these: The petitioner before us applied to the Court of the Subordinate ludge of Patna, under Section 525 of the Civil Procedure Code, for filing an award on the allegation that the same had been made on a reference to arbitration without the intervention of the Court. The opposite party appeared on notice being served on her, and objected to the award being filed in Court on the ground that there was no reference to arbitration by her, and that the ekrar or deed purporting to embody her assent to the reference had been fraudulently caused to be signed by her without the purport of the document being explained to her. And the Court below following the cases of Bijadhur Bhugut v. Monohur Bhugut (1883) I.L.R. 10 Cal. 11 and Surjan Raot v. Bhikari Raot (1893) I.L.R. 21 Cal. 213 rejected the application without taking any evidence or making any enquiry into the truth of the allegations on either side. Aggrieved by the order rejecting the application, the petitioner moved this Court, and has obtained the rule which has given rise to this reference.
24. The answer to the question referred to us must depend upon the meaning of Sections 525 and 526 of the Code of Civil Procedure, and in ascertaining that meaning we must look not merely to the letter but also to the spirit of the law, and must also, as far as possible, have regard to the interpretation put by previous decisions upon these and other cognate provisions of the Code.
25. Section 525 says: ' When any matter has been referred for arbitration without the intervention of a Court of Justice, and an award has been made thereon, any person interested in the award 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.
26. ' 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.
27. ' The Court shall direct notice to be given to the parties to the arbitration other than the applicant, requiring them to show cause within a time specified why the award should not be filed.'
28. An applicant under Section 525 must, therefore, allege that there has been a reference to arbitration without the intervention of a Court of Justice, and an award has been made thereon in which he is interested, and it must be competent to the party summoned to show cause to show, not only that the award is open to the objections referred to in Section 526, but also that the alleged reference to arbitration never took place. Section 526, it is true, enacts 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 this chapter; ' but that cannot be taken to imply that the party summoned to show cause can resist the application only if he can show that the award is open to one or more of the objections contemplated by Sections 520 and 521, and that he is precluded from urging that there was no actual or valid reference to arbitration. It was argued that the effect of Section 526, referring only to the objections under Sections 520 and 521, is to make the absence of other objections such as that there was no actual or valid submission to arbitration, a necessary condition for the Courts entertaining an application under Section 525. But if that had been the intention of the Legislature, it would have been expressed, not in this obscure and indirect way, but more clearly and directly by making Section 525 run, not as it does, but somewhat to the following effect, namely, ' when it is admitted by all the parties concerned that any matter has been referred to arbitration without the intervention of a Court of Justice, etc.' Moreover, if this argument was well founded, that is, if the jurisdiction to entertain an application for filing a private arbitration award depended upon the admission of all the parties concerned that there was a valid reference to arbitration, it would make the section practically nugatory, it being always in the power of a recusant party to say that he does not admit the fact of a valid reference to arbitration having been made.
29. When Section 525 allows a party to apply to the Court for filing an award on the allegation that there was a private reference to arbitration and that the award was made upon such reference, and when it directs that the application shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants, and the other parties shall be summoned to show cause why the award should not be filed, the Court must be held to have jurisdiction (unless it is expressly taken away, which is not the case) to enquire into and determine the question whether there has been a valid reference to arbitration, in the event of the parties summoned denying the reference. And the object of Section 526 is, in my opinion, not to limit the jurisdiction of the Court under Section 525 to cases in which the reference to arbitration is admitted, but simply to provide that the only grounds upon which the validity of a private arbitration award, made upon a reference to arbitration either admitted or proved, can be questioned are precisely those upon which an award made on a reference to arbitration in the course of a suit can be called in question; or, in other words, its object is to show that the validity of a private arbitration award cannot any more than that of an award made on a reference to arbitration in the course of a suit, be questioned on the ground of the award being erroneous in fact.
30. It was next argued that if it had been intended that the Court in a case under Section 525 should determine the question whether there has been any reference to arbitration when such question is raised, then the Legislature would have provided in Section 588 for an appeal against an order determining such question adversely to the applicant; and it would further have provided for an appeal against the decree based on the award when such question is decided in his favour, instead of making such decree final as the latter part of Section 526 by implication does.
31. The answer to this argument is simple. An order under Section 525 determining on the objection of the party summoned to show cause that there has been no valid reference to arbitration and rejecting the application which is numbered and registered as a suit, is clearly a decree as defined in Section 2, and an appeal lies against it under Section 540. The case of Baboo Chintaman Singh v. Uma Kunwar (1866) 6 W. R. Misc. 83: Sup. Vol. B. L. R. 505 was relied upon as showing that such an order is not appealable, but that was a case under the Civil Procedure Code of 1859, which contained no such definition of the term 'decree' as is given in Section 2 of the present Code. Again, when the Court disallows the objection that there has been no reference to arbitration, and orders the award to be filed, and a decree is made in accordance with the award under the latter part of Section 526, which by implication makes Section 522 applicable to the case, though such decree, in so far as it is in accordance with the award, is under the last-mentioned section not open to appeal, yet that does not bar an appeal against the decree when the appeal raises the question whether there was any submission to arbitration and whether there was any valid award at all---See Joy Prokash Lal v. Sheo Golam Singh (1884) I.L.R. 11 Cal. 37; Kali Prosunno Ghose v. Rajani Kant Chatterjee (1897) I.L.R. 25 Cal. 141; and Suppu v. Govinda Charyar (1887) I.L.R. 11 Mad. 85; Lachman Das v. Brijpal (1884) I.L.R. 6 All. 174. The finality that Section 522 contemplates attaches to a decree made in accordance with a valid award; the appeal that that section bars is an appeal against the award on the ground of the award being erroneous in fact on the merits.
32. It was then argued that though Section 525 requires that an application for filing a private arbitration award is to be numbered and registered as a suit, it does not, like Sections 331 and 531, say that the Court is to try the case in the event of opposition in the same manner as a suit, or that its order shall have the same force as a decree; and that a notice to the other parties to the award requiring them to show cause is not the same thing as a summons to them requiring them to defend a suit. I think this argument is fully met by the following answer:
33. In the proceedings under the two sections referred to, namely Section 331 and Section 531, the matter in dispute between the parties is intended to be determined by the Court, and accordingly it is expressly provided in those sections that the matter shall be determined by the Court in the same manner as a suit, and the order of the Court shall have the same force as a decree. In the class of cases to which Sections 525 and 526 relate, the primary matters in dispute between the parties are, or are alleged to be, determined by the award of the arbitrators; the dispute, if any, that may arise is only as to certain secondary or subsidiary matters, that is, as to the fact or the validity of the award, or of the submission to arbitration or of both; and if on any ground (including a ground such as this, namely, that there was no real or valid submission to arbitration), the Court holds that the award cannot be filed, it is evidently not open to the parties to ask the Court to decide for itself the matters to which the award relates; so that any specific provision to the effect that the Court is to decide the case as a suit would have been wholly out of place. The absence of any such provision cannot therefore afford valid ground for any adverse argument.
34. Then as to the supposed distinction between a notice to show cause and a summons to defend a suit, I think it is sufficient to say that when upon a notice to show cause, the party served with notice must allege and prove cause, and the Court must fully and finally determine the validity of the cause shown so far as it relates to matters contemplated by Sections 520 and 521, as has been settled by the decision of the Full Bench in Surjan v. Bhikari I.L.R. 21 Cal. 213 there can be no good ground for thinking that those words imply either that the Court is not to determine at all, or that it is to determine only summarily, and subject to a more complete determination by a suit, the cause shown, when the cause shown consists in a denial of any reference to arbitration.
35. It was lastly argued that as the procedure prescribed by Section 525 is a summary one, and the proceeding is instituted by an application and not by a plaint on payment of a proper Court-fee, it is not likely that the Legislature intended that any difficult questions, such as those relating to the fact or validity of a reference to arbitration, should be enquired into by the Court under that section. But the simple answer to the argument is this, that the Court must under Section 526 enquire into and determine objections such as those referred to in Sections 520 and 521, which raise questions of far greater nicety and difficulty than those sought to be excluded from the Court's consideration, and there is no reason why the Court should not determine these last which lie at the threshold of the case, when it must enquire into the former.
36. Sections 523 and 524 to some extent favour the view I take. They provide that a party to a private agreement to refer to arbitration any matter in dispute may apply to have the agreement filed in Court; thereupon the application is to be numbered and registered as a suit between the applicant and the other parties to the agreement, and a notice is to be issued to them to show cause why the agreement should not be filed, and if no sufficient cause be shown the agreement will be filed, arbitrators appointed, and the case proceeded with in the same manner as if the reference to arbitration had been made in a pending suit. Now in such a case the cause shown can relate only to the fact, validity or subsistence of the agreement to submit to arbitration, and if the Court is to enquire into these matters in a proceeding instituted under Section 523, there is no good reason why it should not enquire into them in a case under Section 525, As I understand the sections included in Chapter XVII of the Code of Civil Procedure, they are intended to provide for all cases of reference to arbitration, whether it be made, in the course of a suit, or privately without the intervention of a Court. The first group of sections, that is, Sections 506 to 522, provide for reference to arbitration in the course of a pending suit; the second group, that is Sections 523 and 524, relate to cases in which the parties have, or are alleged to have, before instituting any suit, privately come to an agreement to refer any matters in dispute to arbitration, but have proceeded no further; and the third group, that is Sections 525 and 526, to cases in which there has been, or is alleged to have been, a private submission to arbitration followed by an award. In the first group of sections are given in detail the provisions applicable to the subject, while the other two groups concisely and by implication refer to such of the provisions of the first group as are respectively applicable to the classes of cases they contemplate, and it is their brevity which has given rise to the difficulty of construing them.
37. I may add that the view I take has the effect of preventing multiplicity of judicial proceedings by making the proceedings under Section 525 determine finally all the necessary questions that may arise in it, and it is in accordance with the view taken by the majority of the Full Bench in Brojo Durlubh Sinha v. Roma Nath Ghose (1897) I.L.R. 24 Cal. 908 upon a somewhat analogous question arising upon the construction of Section 375.
38. It remains now to consider the eases cited.
39. Of these Chintamoni Singh v. Rupa Koer (1866) 6 W. R. Misc. 83 (which has already been referred to above), and Lala Iswar Prosad v. Bir Bhanjan Tewari (1871) 8 B.L.R. 315: 15 W. R. (F. B) 9 were decided under the Civil Procedure Code of 1859 under which the provisions relating to appeal were, as has been shown above, different from those under the present Code.
40. The cases of Ichamoyee Chowdhranee v. Prosunno Nath Chowdhri (1883) I.L.R. 9 Cab 557; Hurronath Chowdhry v. Nistarini Chowdhranee (1883) I.L.R. 10 Cal. 74 which not only favour the contention of the opposite party, but go a great deal further, have been dissented from by the Full Bench in Surjan Raot v. Bhikari Raot (1893) I.L.R. 21 Cal. 213.
41. The case of Bijadhur Bhugut v. Monohur Bhugut (1883) I.L.R. 10 Cal. II, is no doubt against the view I take. The decision in that case is based upon the terms of Section 526. Mitter, J., in delivering the judgment of the Court says: 'It appears from Section 526 that the Court has jurisdiction to adjudicate only upon the grounds of objection mentioned in Sections 520 and 521.' For the reasons given above I must respectfully dissent from this view. And the same remarks apply to the case of Tejpur v. Mahomed Jamal (1896) I.L.R. 20 Bom. 596.
42. The opinions of PRINSEP, Pigot and Macpherson, JJ., in Surjan Baot v. Bhikari Baot (1893) I.L.R. 21 Cal. 213 are also against the view I take. But those opinions were not necessary to be expressed for the determination of the question before the Court. The ground upon which those opinions are based is the absence of any reference in Section 526 to any objections other than those contemplated by Sections 520 and 521. But this ground, as I have tried to show above, is not sufficient to support the inference that is based upon it.
43. The case of Muhammed Nawaz Khan v. Alain Khan (1891) L. R. 18 I. A. 73 was referred to as showing that the Privy Council held that an order rejecting an application for filing an award under Section 525 would not operate as res. judicata, upon the question of the validity of the award, and thence it was argued that the jurisdiction of the Court under that section must be of a very limited character. I do not think that the case cited lays down any such broad rule or supports any such inference. Their Lordships overruled the plea of res judicata, not upon the ground of the jurisdiction of the Court under Section 525 being limited in any way, but solely upon the ground of the question as to the validity of the award not having been raised and decided in the former proceeding.
44. On the other hand the cases of Amrit Ram v. Dasrat Ram (1894) I.L.R. 17 All. 21 and Husananna v. Ling anna (1894) I.L.R. 18 Mad. 423 support the view I take.
45. For the foregoing reasons I would answer the question referred to us in the negative.
46. But here an important point arises for consideration. As in the view I take the order of the Court below rejecting the application is open to appeal, is it competent to the petitioner to invoke our interference under Section 622 of the Code of Civil Procedure? The question I think must be answered in the negative. But as, regard being had to the value of the subject-matter to which the award relates, the appeal lies to this Court, and as the application under Section 622 was made before the expiry of the time allowed for an appeal, I would treat the application as an appeal (provided the applicant puts in the proper Court-fee) and I would decree the appeal, set aside the order of the Court below, and remand the case to that Court for a decision on the merits.
47. With this indication of our opinion we remit the case to the Division Bench which referred it to us. We fix three gold mohurs as the hearing fee for the hearing before the Full Bench.