1. This appeal is against the judgment of my learned brother C. C. Ghose, J., dated the 23rd January 1925 dismissing the application of Narendra Nath Das, the present appellant, to set aside an award dated the 10th September 1924 made by certain persons purporting to act as arbitrators oil the reference of a dispute between him and the respondent Haran Chandra Bose.
2. What the dispute was or how it arose it is not in the least degree material to enquire and the facts with which we are concerned begin with the submission dated the 1st August 1915 whereby the parties submitted to three named individuals, Rama Nath Ghose, Sarat Chandra Ghose and Jnan Chandra Ghose, the settlement of their differences. The terms of the submission are as follows:
I Sree Narendra Nath Das and I Sree Haran Chandra Ghose, we both appoint you as arbitrators for settlement of our difference in connection with the premises No. 41 Newgipukur Lane and with our dealings between each other; whatever decision you will give will be accepted. Finis, 1st August 1915.
3. I may at once mention that I shall refer for the narrative to documents not to be found in the record of this appeal to which our attention has been directed by consent of learned Counsel for the parties.
4. Nothing appears to have been done by the arbitrators for a period of some four years in the course of which the arbitrator Jnan Chandra Ghose died.
5. On the 12th August 1919 an application was made to this Court under Clause (17) of Schedule II of the C.P.C. on behalf of Haran Chandra Ghose for an order (inter alia) that the surviving arbitrators might be requested to produce the submission and that it be filed; and that if necessary a third arbitrator might be appointed by the Court.
6. Such an application was clearly not one to be made in the circumstances. Any order which in the event of the death of the 3rd arbitrator should be made could only be made under the Arbitration Act and then only if the conditions as to written notice prescribed by Section 8 had been fulfilled, which does not appear to have been the case. This seems to have been recognised by the learned Judge who heard the application to some extent for he made an order giving the applicant liberty to amend the cause title so as to intitule the application in the matter of the Arbitration Act, in the matter of which he directed that the application should be treated as having been made. He further ordered that the surviving arbitrators should be at liberty to act in the reference and gave them liberty to appoint an umpire if necessary, and finally he directed the arbitrators to make their award within two months with liberty to enlarge the time by another two months.
7. The Court Minutes show that learned Counsel for the appellant objected that evidence justifying an order under Section 8 was necessary.
8. The surviving arbitrators on the 18th January 1920 purported to appoint Babu Sailendra Kumar Palit as the third arbitrator and umpire and the arbitrators then entered upon the reference and eventually on the 10th September 1924 made their award--the award being made and signed by the three persons as arbitrators.
9. No amendment of the cause title had, however, been made meantime as directed and the arbitrators intituled the appointment and their award in the matter of Schedule II of the C.P.C. thus perpetuating the initial error.
10. The award was filed in November 1924, at whose instance does not appear, but no notice of the application to file it was given to the appellant as is required by Clause 20 (3) of Schedule II assuming that to have been applicable.
11. A notice dated the 24th November 1924 intituled in the same manner, was, however, given to the appellant, that the award had been filed and that the Court would proceed to give judgment on such award on the 8th December 1924.
12. This notice appears to have been given on a form intended to be used where judgment is to be given on an award in a reference made in a suit to which Clauses 1 to 16 are applicable, for Clauses 17 to 21 do not apply to submissions to which the Arbitration Act applies.
13. Subsequently, on the 28th January 1924 judgment was given upon award.
14. The appellant now impugns the award on the ground that it is without sanction, in that he never submitted to the arbitration of the three persons who purport to have made it, and that so far as it purports to have been made under or by virtue of the order of the 12th August 1919 such order was made without jurisdiction.
15. As to the first of these two points it is clear, apart from any contention as to waiver, to which I shall return, that his connection is correct. It suffices to read the submission which is to three named arbitrators other than the three persons who purported to make the award, nor does it contain any provision for substitution.
16. As regards the order of the 12th August 1910 I am equally confident that the respondent cannot rely upon it.
17. The learned Judge' had no power without consent of parties to adjudicate upon an application made under Clause 17 of the Second Schedule as though it were made under the Arbitration Act. But assuming he had such power, there was nothing in the petition to show that ' such antecedent steps had been taken as would entitle the applicant to an order under Section 8. Again, assuming that such evidence was before the Court, the only order possible in the circumstances was one appointing a third arbitrator, whereas the order gave liberty to the surviving arbitrators to act in the reference and to appoint an umpire if necessary. In my opinion such order was made without jurisdiction and it conferred no power on the arbitrators whose award is impugned to make it.
18. Again, however, assuming that the application was properly converted into one under the Arbitration Act and that the order was such as could properly be made thereunder, the parties and arbitrators subsequently acted throughout as though these clauses of the Second Schedule of the C.P.C., which under the Arbitration Act do not apply to cases to which that Act applies, still governed the proceedings.
19. As it was all subsequent proceedings should have followed the Arbitration Act and the rules made thereunder, which, provide that an award shall be filed and thereupon may be enforced as a decree. This was not the course pursued and had it been the position of the appellant might have been more difficult. Once the matter was converted into one under the Arbitration Act there was no power either for the parties or the arbitrators or the Court to act under the Schedule and all steps so taken must be regarded as having been taken without jurisdiction.
20. This disposes of the contention of the respondent's Advocate that not having appealed against the judgment on the award the appellant cannot succeed. We may not be able to set aside that judgment but if the award which is directed to be carried out is set aside there will be nothing left to be enforced and any technical difficulty will not stand in the way of the appellant.
21. Lastly it is contended that by attending before the arbitrators the appellant must be taken to have consented to the appointment of the third arbitrator, whether or not the order was made without jurisdiction and that he waived all irregularities in the appointment. This argument would have considerable force if the appellant had attended the reference without protest. But it was pointed out on his behalf that he protested at the earliest opportunity, viz., on the application resulting in the order of 12th August 1919, all subsequent proceedings of the arbitration purport to have been held in consequence of that order and for the appellant to have protested to the arbitrators would have availed him nothing. Having made his protest he was entitled to attend at the reference and make this best of the position as far as he could.
22. In my opinion the award should be set aside on the ground that it is a nullity by reason of the fact that the reference was held by the arbitrators without authority to decide the matter in dispute. The result, therefore, will be that the appeal should be allowed--the appellant is entitled to his costs both of the appeal and before the Court of first instance.
Lancelot Sanderson, C.J.
23. I agree with the judgment which has just been delivered by my learned brother, and I do not think it necessary to add anything.