Lancelot Sanderson, C.J.
1. In this case a preliminary point has been taken that there is no right of appeal.
2. An application was made before Mr. Justice Greaves by the present appellants, and they obtained a Rule calling upon the opposite party to show cause why the award made in these matters should not be taken off the file and set aside, or why, in the alternative and without prejudice to the petitioners, the said award should not be remitted, and why an injunction should not be awarded against the opposite party restraining them and their assignees, servants and agents, until the further order of this Court, from executing the said award.
3. As I understand, the award had been made against the petitioners, and it had been sent by the arbitrator to the Registrar, who, in accordance with the rules, filed it I ought to have said that the arbitration was under the Indian Arbitration Act, 1899, which applies to the Presidency Towns, and so to Calcutta, The rule which applies is Rule 12 of Chapter XXIII of the Original Side Rules, which is as follows: Where the arbitrators or umpire have been requested to file the award, they shall cause the award or a signed copy thereof to be filed in Court in accordance with Section 11(2) of the Act, by forwarding the same (together with the necessary Court-fees for filing) under a sealed cover addressed to the Registrar, with a letter requesting that the award be filed.' That, as appears from the rule, is done in pursuance of the provisions of Section 11, Clause (2), of the Indian Arbitration Act; and, that clause provides, 'the arbitrators or umpire shall, at the request of any party to the submission or any person claiming under him, and upon payment of the fees and charges due in respect of the arbitration and award, and of the costs and charges of filing the award, cause the award, or a signed copy of it, to be filed in the Court; and notice of the filing shall be given to the parties by the arbitrators or umpire.'
4. The learned Counsel for the appellant has argued that there is a right of appeal either under the Section 104(f) of the Civil Procedure Code or under Section 15 of the Letters Patent.
5. I do not agree with the learned Counsel that there is a right of appeal under Section 104(f) in this case; that section provides that 'an appeal shall lie from the following orders.
(f) An order filing or refusing to file an award in an arbitration without the intervention of the Court.
6. I do not think that Clause (f) of Section 104 applies to the filing of an award under Clause (2) of Section 11 of the Arbitration Act, because an award under the latter clause can be filed in Court, and is in practice filed in Court without the intervention of an order by a Judge. In my opinion, Clause (f) of Section 104 obviously refers to proceedings under Section 20 and perhaps other sections of the Second Schedule of the Code of Civil Procedure, then the arbitration proceedings are under the Second Schedule of the Code. Then if the party, under Section 20, wants to get the award filed, he has to apply to the Court, find an order of the Judge is required, and the Judge would make an order directing that the award should be filed or that the award should not be filed, as the case might be. Section 104(f), therefore, would apply to such proceedings, and I do not think, as already stated, the section would apply to proceedings under Clause (2) of Section 11 of the Arbitration Act, under which an award can be filed without the order of a Judge.
7. But I am clearly of opinion that we have jurisdiction to hear the appeal under Clause 15 of the Letters Patent, and, I think that there, is no doubt that the order of Mr. Justice Greaves in this case, whereby he refused to take the award off the file, was a judgment within the meaning of Clause 15 of the Letters Patent. In a material sense, it finally decided, the rights of the parties, because, by refusing to take the award off the file, the learned Judge in effect made the appellant liable for the amount of the award, for, if the award is put upon the file and remains upon the file, then, as pointed out by the learned Counsel for the appellant, it is enforceable as if it were a decree of the Court under Section 15 of the Arbitration Act.
8. For these reasons, I think that an appeal lies.
John Woodroffe, J.
9. I agree.