Authored By : Maclean, Henry Thoby Princep, T. Ameer Ali

Maclean, C.J.

1. This is an appeal from an order of Mr. Justice Sale,dated the 22nd March 1898, refusing to set aside an award made in the suit. Thesuit was for the recovery of jewellery of the value of Rs. 2,600 or thereabouts: it was by consent referred to arbitration on the 22nd February 1897, and theaward which the present Appellants seek to set aside was made on the 9thJanuary 1898.

2. It is sought to set aside the award on the ground of themisconduct of the arbitrators.

3. A preliminary objection, however, has been taken onbehalf of the Respondents (the successful Plaintiffs in the suit) that noappeal lies to this Court, and that contention is based on two grounds : (1)that the right of appeal from the decision of a single judge conferred by sec.15 of the Letters Patent of 1865 is controlled by see. 588 of the Code of CivilProcedure, and (2) that the decision of Mr. Justice Sale is not a"judgment" within the meaning of sec. 15 of the Letters Patent.

4. To my mind the first of these points has beenauthoritatively decided against the view of the present Respondents by theJudicial Committee of the Privy Council in the case of Hurrish Chunder Chowdhryv. Kali Sunderi Debt I. L. R. 9 Cal. 482, 494; L. R. 10 I. 4 (1882). I need nottravel into the facts of that case but there, their Lordships said, "Itonly remains to observe that their Lordships do not think that sec. 588 of ActX of 1877, which has the effect of restricting certain appeals, applies to sucha case as this where the appeal is from one of the judges of the Court to theFull Court." It is clear from the report that the point was elaboratelyargued, and the clear expression of their Lordships opinion must be read inconnection with that argument. But we are told there are reported decisions ofthe High Courts of India which conflict with this view of the Privy Council,and that there is, virtually a Current of Judicial authority in this countryagainst that view. Great reliance is placed upon a decision of the AllahabadHigh Court, Banno Bibi v. Mehdi Hosain I. L. R. 11 All. 375 (1889)., but thereasons there given for distinguishing that case from the one in the PrivyCouncil are not, to my mind, sufficiently convincing. In a later case ofMuhammad Naimullah Khan v. Ihsanullah Khan I, L. R, 14 All. 226(1892)., thesame Court assigns other possible reasons for the decision of the PrivyCouncil-but it seems a little forced to say these were the reasons of the PrivyCouncil when their Lordships have said that sec. 588 does not apply "whenthe appeal is from one of the judges of the Court to the full Court."Then, again, we are referred to two cases of the Madras High Court, Achaya v.Ratnavelu I. L. R. 9 Mad. 253 (1885) and In re Rajagopal I. L. R. 9 Mad. 457(1886).. But in neither of these cases, which were respectively decided in 1885and 1886, was the case in the Privy Council cited, though previously decided in1882: so they can scarcely carry much weight. In the case of Vasudeva Upadyayav. Visvaraja Thirtha Sami I. L. R. 20 Mad. 407 (1897). Mr. Justice Benson at p.412 tells us what, in his opinion, their Lordships language in the PrivyCouncil amounts to, and it is this :--" Sec. 588, no doubt, has the effectof restricting appeals in the case of orders which are not decrees, but it doesnot apply to such a case as this before us which is an order in execution and,therefore, a decree. When, therefore, such an order has been made by a singlejudge an appeal lies to the full Court." This may be what their Lordshipsmeant, but it is not what they have said. And the learned judge goes on to sayat the same page " it is impossible to suppose that their Lordships, in amere observation of four lines, without any explanation or reasoning, laid downa rule of such farreaching importance, and opposed to what appears to be theplain language and intention of the Legislature."

5. To my mind the language of the Judicial Committee is notvery aptly described as " a mere observation."

6. Mr. Justice Bensons opinion, however, is not shared byhis learned colleague in the case, and I am not disposed to accept the viewthat, in advising Her Majesty, the members of the Judicial Committee of thePrivy Council are so unguarded in their language--especially when the precisepoint has been urged before them by most experienced counsel--as Mr. JusticeBenson seems inclined to assume. I am but little disposed to whittle awaydecisions of the Privy Council; I prefer to accept, and, as I am bound, tofollow them if really in point: and if they be regarded as requiringreconsideration to let them be reconsidered by the members of the JudicialCommittee themselves.

7. I notice that two of the members of the JudicialCommittee on this occasion were retired Chief Justices of Bengal, and I may addthat the majority of the Judges of this Court held that an appeal would lie andthat Garth, C. J., dissented only because he doubted whether Mr. JusticePontifexs decision was a judgment within the meaning of sec. 15 of the LettersPatent. In my opinion, then, the first question is concluded by the decision ofthe Privy Council, so also virtually is the second : for the decision proceedsupon the footing that Mr. Justice Pontifexs order was a judgment within themeaning of sec. 15 of the Letters Patent of 1865. But whether that be so ornot, I am clearly of opinion that Mr. Justice Sales order was a judgmentwithin the meaning of that section.

8. I concur in the definition of a judgment given in thecase of The Justices of the Peace of Calcutta v. The Oriental Gas Company 8 B.L. R, 452 (1872). Mr. Justice Sales order was a decision upon the question ofwhether the award was to stand or to be set aside. If this be not a"judgment," I scarcely see what a judgment can well be. I thereforeoverrule the preliminary objection. I will now pass to the merits. TheAppellants charge the arbitrators with misconduct and upon this they base theirclaim to have the award set aside.

9. The arbitration commenced on the 15th August, certainwitnesses were examined and cross-examined, and adjournments, were from timeto time made, and although there was a little skirmishing as to whether thearbitrators should sit on Sundays or out of office hours, no case of misconductis alleged against the arbitrators up to the early part of January 1898.

10. But on the 3rd January 1898 the Defendants attorneyreceived a letter from the Plaintiffs attorney saying that the hearing of thearbitration would be postponed for four weeks on account of the absence fromCalcutta of one of the arbitrators. Notwithstanding that intimation, on the 7thJanuary the arbitrators sent a notice to the Defendants that they intended toproceed with the arbitration at 6-30 that same evening. This to my mind was notreasonable conduct on their part, having regard to their notice a few daysbefore, that the meeting had been adjourned for a month and, if the arbitratorshad insisted on proceeding with the arbitration that evening, I am not preparedto say that my conclusion on the case would not have been adverse to thePlaintiffs. The Defendants say they did not receive this notice until 5oclock, but be that as it may, they attended the meeting, and the hearing waspostponed until 7-30 on the following morning, although, as the Defendants say,they protested that this was too short an adjournment and that they would nothave time to consult their attorney. The Plaintiffs say they heard nothing ofany such protest. Except extending the time for making the awards, nothing wasdone at this meeting. The fact of fixing so early an hour in the morning forthe meeting may appear somewhat strange to European ideas, but it must beremembered that this was an arbitration between Native litigants with Nativearbitrators, that the evidence shows it was to be conducted out of officehours, and in that view a meeting at such an hour is, perhaps, nothing veryextraordinary. However, on the 8th January the Defendants did not appear at themeeting, and after waiting for nearly 2 hours, the arbitrators adjourned till 8a. m. on the 9th, notice of which was given in the forenoon of the 8th to the Defendantsand to their attorney.

11. But on the 8th the Defendants attorney wrote theletters set out at pages 9 and 10 of the paper-book. After that at page 9 hadbeen written--but whether or not before it had been sent is not apparent on theevidence--the Defendants attorney received the notice of the postponement ofthe meeting until the 9th and thereupon wrote the letter on p. 10 saying "the whole thing seems to be a farce, my clients will have nothing further to dowith the arbitration." Now were the Defendants under these circumstancesjustified in withdrawing from the arbitration I think not. The arbitrators toput it at the lowest had displayed a readiness to adjourn the case when theDefendants said they were not prepared to go on : they adjourned the meeting onthe 7th and again they adjourned it on the 8th, and proceeded on the 9th onlyafter they had been told that the Defendants had withdrawn. It is their actionon these occasions which is said to constitute the misconduct on their part. I donot think such action amounts to misconduct. On the contrary I think theDefendants, under the circumstances, put themselves in the wrong by withdrawingfrom the arbitration. When they were told the meeting was adjourned until the9th their reasonable course would have been to have appeared before thearbitrators, and urged the necessity, if it existed, of a further andreasonable adjournment. Looking at some of the objections raised from time totime by the Defendants attorney, I am not disposed to think that theDefendants were over-anxious that the arbitration should proceed with too muchrapidity. However be that as it may, I agree with Mr. Justice Sale that therewas no misconduct on the part of the arbitrators, and the rule must bedischarged with costs.

Henry Thoby Princep, J.

12. This appeal is against an order of Mr. Justice Saleunder sec. 522 [521 ] of the Code of Civil Procedure refusing to set aside anaward.

13. A preliminary objection has been taken to the hearing ofthis appeal on the ground first, that it is barred by sec. 588 of the Code ofCivil Procedure and next that if not so barred it is not appealable as ajudgment within the terms of sec. 15 of the Letters Patent.

14. Briefly the law bearing on this subject may be thusstated :--

15. Suits brought in the Ordinary Original CivilJurisdiction may be tried by one judge whose proceedings are regulated by rulesand orders made by the High Court as far as possible in accordance with theCode of Civil Procedure.

16. Sec. 15 of the Letters Patent, 1865, declares that anappeal shall lie to the High Court from the judgment, not being a sentence ororder passed or made in a criminal trial, of one judge. Sec. 15 thereforeconstitutes a Court of Appeal in such cases and it further declares that theappeal would lie from a judgment of a single judge.

17. It is contended that this section of the Letters Patent,1865, has been modified by the Code of Civil Procedure, 1882, and especially bysec. 588 of that Code.

18. The Supreme Legislative Council has the power to amendthe Letters Patent (sec. 44), but the question is whether such power has beenexercised in this respect.

19. Sec. 15 of the Letters Patent, 1865, is like the BengalCivil Courts Act and similar Acts constituting a Court to hear appeals in caseswhere the right of appeal is given by law, but sec. 15 goes further than thoseActs because it limits the cases appealable. It provides for an appeal to theHigh Court against the judgment of a single judge of that Court not being a sentenceor order passed or made in a criminal trial and this applies where suchjudgment may have been passed by such judge sitting as a Division Court inexercise of civil jurisdiction either as a Court of Appeal or as a Court ofOriginal Jurisdiction. But the right of appeal is against a judgment only andagainst the judgment of only a single judge. I do not refer to the other partof this section because it is irrelevant for the purposes of the case nowbefore us. Without sec. 15 of the Letters Patent although an appeal might lieunder the Code of Civil Procedure, 1882, there would be no Court constituted tohear the appeal against a judgment, decree or order on the Original CivilJurisdiction of the High Court, for sec. 16 relates to a different matter andit would confer no such Appellate Jurisdiction, and the portions of the Code ofCivil Procedure which relate to appeals to Her Majesty in Council would givethe right of appeal only in a small number of cases of a special charactereither in regard to the points of issue or the value of the subject-matter ofthe particular suit. We have it, therefore, that if, beyond sec. 15 of theLetters Patent, 1865 sec. 588, Code of Civil Procedure gives the right ofappeal against any order of the description specified therein, there is noCourt of Appeal constituted to hear it if such order not being a judgment, hasbeen made by a judge on the Original Side of the High Court. There would beanother difficulty which it is inconceivable that the Legislature should havecontemplated. If irrespective of sec. 15 of the Letters Patent an appeal liesunder sec. 588 of the Code, it must be against an order passed by any DivisionCourt exercising the Original Civil Jurisdiction of the High Court. To whatCourt would it be There is no Court constituted by the Letters Patent or byany local law to hear it. Sec. 16 of the Letters Patent does not apply nor doessec. 15. Then again if such an order be appealable, it would be appealable ifpassed by a Division Court consisting of more than one judge. The Court mighthave consisted of the majority or even of all of the judges of the High Court.I would also point out that the same difficulty would arise if an order ofremand be passed by a Division Court hearing an appeal, whether that appeal befrom the High Court on its Original Jurisdiction or from a Subordinate Court,such as the Court of a District Judge or Subordinate Judge. Theseconsiderations lead me to conclude that it was never intended by theLegislature to alter the effect of sec. 15 of the Letters Patent by suchindirect legislation. If it had been intended to do so, the alteration in thelaw would have been expressly declared, and such difficulties as I haveindicated would have been provided for. The contention of the learned counselproceeds upon secs. 632 and 638 of the Code of 1882. Sec. 632 provides that" except as provided in the chapter the provisions of this Code apply tosuch" that is, to all High "Courts" established by 24 and 25Victoria, Chap. 104, and sec. 638 sets out the sections of the Code which areso excepted. Amongst these sec. 588 does not appear and so it is contended thatan appeal lies under sec. 588 against an order passed on the Original CivilJurisdiction of the High Court, that only such orders as are specified in sec.588 are appealable : and lastly, that as the order on the case before us is notwithin sec. 588 it is not appealable. But to complete this line of argument itwould be necessary to go further and to hold that the term "judgment" in sec. 15 of the Letters Patent must be read as synonymous with decreeas defined in the Code. There is no authority for this and we cannot alter themeaning of "judgment" in the Letters Patent, 1865, as it has alwaysbeen accepted, by inferentially making it synonymous with the definition ofdecree as given in the Code of 1882. "I have so far considered this matteras if it were res Integra. But fortunately we have authority for our guide. InHurrish Chunder Chowdhry v. Kali Sunderi Debia I. L. R. 9 Cal. 482, 494; L. R.10 I. A. 4 (1882). their Lordships of the Privy Council held that an order madeby Mr. Justice Pontifex on the Original Side of the High Court under sec. 610of the Code rejecting an application to execute an order of Her Majesty in Councilis a judgment, and in dealing with that case their Lordships were pressed withthe argument that the right of appeal in that case was regulated by sec. 588 ofthe Code of Civil Procedure which had modified sec. 15 of the Letters Patent.Their Lordships of the Privy Council disposed of this in these words : "It remains only to observe that their Lordships do not think that sec. 588, ActX of 1877, which has the effect of restricting certain appeals applies to sucha case as this where the appeal is from one of the judges of the Court to theFull Court." I observe that Act X of 1877 is here mentioned, but as amatter of fact the order under appeal was passed in 1880 and was consequentlyunder the Act of 1877 as modified by Act XII of 1877 and the Code of CivilProcedure in this respect is the same as the Code of 1882 which is now inforce. I understand this to mean that sec. 588 does not affect any mattercoming within sec. 15 of the Letters Patent, and if I may venture to say so,the reasons which led to the expression of that opinion and which have not beengiven in the judgment reported, may be those stated by me for arriving at thesame conclusion. It is much to be regretted that the terms of sec. 638 of theCode should have been so expressed as to give good ground for entertaining adoubt, but in my opinion the matter has been definitively settled by thehighest authority in the case mentioned by me.

20. Some cases have been cited to us in which there has beena reluctance to accept this expression of opinion regarding the operation ofsec. 588 and endeavour has been made to explain it as not binding to the fullextent of the meaning. I find myself unable to accept that view of our law bothbecause the terms of this expression of opinion by their Lordships are clearand emphatic and also because if I may be permitted to say so a carefulexamination of the law on the subject fully bears it out.

21. In Banno Bibi v. Mehdi Hosain I. L. R. 11 All. 375(1889). the case of Hurrish Chunder Chowdhry v. Kali Sunderi Debt I. L. R. 9Cal. 482, 494; L. R. 10 I. A. 4 (1882), was considered, and that case wasdistinguished, having regard to the matter then before their Lordships of thePrivy Council. With every respect to the learned judges I am unable to agreewith their views of the distinction. Whatever may have been the grounds uponwhich two of the judges (White and Mitter, JJ.) may have decided that matter,it was considered by their Lordships of the Privy Council that they had heldthat Mr. Justice Pontifexs order was "a judgment within the meaning ofsec. 15 of the Letters Patent" and in their observations in dealing withthe dissentient judgment of Garth, C. J., they show no indication of any doubton this point. On the contrary they follow this up by adding " theirLordships do not think that sec. 588, Act X of 1877 (Code of Civil Procedure),which has the effect of restricting certain appeals applies to such a case asthis when the appeal is from one of the judges of the Court to the FullCourt." I observe that Edge, C. J., in this case states that"considerable difference exists between sec. 588 of the present Code andsee. 588 of Act X of 1877 which was the Act under consideration in the casebefore the Judicial Committee." I cannot find to what the learned ChiefJustice refers, for after a careful comparison of these sections of the twoCodes of 1877, as amended by the Act of 1879 and of 1882, I am unable to findany difference affecting this particular matter.

22. Two cases in I. L. E. 9 Mad. 253 and 147 were reliedupon in the case of Banno Bibi v. Mehdi Hosain I. L. R. 11 All. 375 (1889). Inthe first of these cases it was held that notwithstanding sec. 15 of theLetters Patent there was no appeal against, the order of a single judge of theHigh Court rejecting an application for review of judgment. The reason givenfor this was that see. 15 of the Letters Patent was controlled by sec. 629 ofthe Code which declared that such an order shall be final. The other case isexactly in point as it was there held that sec. 15 of the Letters Patent wascontrolled by sec. 588 of the Code which gave no appeal against an orderrejecting an application to sue in forma pauperis. But the reports of thesecases show that in neither of them was the judgment of their Lordships of thePrivy Council cited or considered. I do not therefore propose to discuss themin detail. It is sufficient to state that they express a different view of thelaw, which I am not disposed to follow against the higher authority of theJudicial Committee of the Privy Council.

23. In Muhammad Naimullah Khan v. Ishanullah Khan I. L. R.14 All. 226, 230 (1892). the case of Hurrish Chunder Chowdhry v. Kali SunderiDebi I. L. R. 9 Cal. 482, 494; L. R. 10 I. A. 4 (1882) is incidentally referredto, the interpretation of that, expressed in the earlier case of that Court,being maintained.

24. The matter was also considered by the Madras High Courtin Vasudeva Upadyaya v. Visvaraja Thirthasami I. L. R. 20 Mad. 407 (1897).which was an appeal under sec. 15 of the Letters Patent, 1865, against theorder of a single judge of the High Court dismissing an appeal against an orderpassed by a lower Appellate Court remanding a suit. The learned judges in thatcase (Benson and Subramanya Ayer, JJ.) did not take the same view of the lawregarding the effect of the sec. 588 of the Code of Civil Procedure on sec, 15of the Letters Patent. The order under consideration was, I would again state,so as to express the case clearly, an order passed by a single judge of the HighCourt sitting as an Appellate Court on an appeal under see. 588 from the orderof a lower Appellate Court remanding a suit. Benson, J., held that sec. 15 ofthe Letters Patent had been modified by sec. 588 of the Code, that is to say,of the Code of 1882, that the order in question was not appealable under sec.588 because it was an order passed by a single judge in an appeal which hadbeen heard under see. 588 and the concluding words of sec. 588 barred a furtherappeal; whether such an order would be a judgment within the terms of sec. 15of the Letters Patent apparently was not considered.

25. Mr. Justice Benson referred to the case before the PrivyCouncil and notwithstanding the emphatic terms on which their Lordshipsexpressed their opinion that sec. 588 does not apply to a case such as thatbefore them in which the appeal is from one of the judges of the High Court tothe Full Court he stated that in his opinion " these words refer only tothe actual case before the Privy Council. " Whatever may have been thecase before their Lordships, their observations clearly were directed to everycase in which the appeal is from "one of the judges of the High Court tothe Full Court" which I understand to be that, notwithstanding sec. 588 ofthe Code, sec. 15 of the Letters Patent, 1865, remains in full force anduntouched, and I certainly do not agree in the paraphrase of theseobservations, as expressed by that learned judge in page 412 of the report.

26. Mr. Justice Subramanya Ayyar on the other hand reluctantlyyielded to the force of authority in previous cases of the Madras High Court,supported by the Allahabad cases which I have mentioned but he was not preparedto set aside the opinion of their Lordships of the Privy Council as mere dicta.He says : " The tenor of the observations seem clearly to indicate thatthey were intended to be a decision on the point, irrespective of thecircumstances of the particular case in which the observations were made," and he left the matter to be finally settled at some future time by aFull Bench of the Madras High Court. I may here state that in another caseSankaran v. Raman Kutti I. L. R. 20 Mad. 152 (1896) the Madras High Court(Collins, C.J., and Benson, J.) held that, in a similar case, an appeal did notlie, by reason of the concluding words of sec. 588, against an order passed onappeal by a single judge of that Court against the order of a lower AppellateCourt remanding a suit. The case before the Privy Council was not referred toin the report of that case. The High Court followed previous cases on thesubject and amongst these the case of Loki Mahto v. Aghore Ajail Lall I. L. R.5 Cal. 144 (1876).I have not referred to that case as it was decided before thecase before the Privy Council. There are only two reported cases of this HighCourt in which the case of Hurrish Chunder Chowdhry v. Kali Sunderi Debi I. L.R, 9 Cal, 482, 494; L. R. 10 I. A. 4 (1882). has been referred to and in eachof these cases, that case was explained and distinguished in this way, thattheir Lordships held that where the order of a single judge decided finally orotherwise any question at issue in the case or the rights of any of the partiesto the suit, it is appealable to this Court under sec. 15 of the LettersPatent. How far sec. 588 of the Code has touched sec. 15 of the Letters Patent,1865, has never, that I am aware of, been considered until now.

27. I do not desire to discuss this subject any further. Ientirely agree with the manner in which Mr. Justice Subramanya Ayyar has expressedhimself in the words I have quoted from I. L. R. 20 Mad. 407, and I have nodoubt that we are bound to follow to the fullest extent the opinion expressedby their Lordships of the Privy Council that sec. 588 of the Code does notapply to the case now before us and that this matter has thus be-come settledlaw.

28. I confess, however, to have had some doubt whether theorder under sec. 522 of the Code refusing the application to set aside theaward is a judgment within the terms of sec. 15 of the Letters Patent andwhether the appeal before us has not been prematurely made. Sec. 522 declaresthat after such an order " the Court shall proceed to give judgmentaccording to the award and that upon judgment so given a decree shallfollow."

29. This appeal has been preferred before judgment anddecree on the case and it seems therefore to have been somewhat premature.This, however, is after all a mere matter of form; the question is whether theorder is a judgment within sec. 5 of the Letters Patent, 1865. The order is sofar final that judgment must follow on it on the terms of the award and it sofar concludes the rights of the parties in the suit. So far therefore, as heldin Hurrish Chunder Chowdhrys case, it is a judgment within the meaning of sec.15 of the Letters Patent. There are other cases to the same effect to which Imight refer but this is unnecessary.

30. On the merits of this appeal I agree with the judgmentof my Lord the Chief Justice just delivered.

T. Ameer Ali, J.

31. After the well reasoned judgments just delivered it onlyremains for me to express my entire concurrence with them.

32. I only wish to observe that where the Legislatureintended to give finality to an order whether made by a single judge of a HighCourt established by Royal Charter or by any other judge it has declared so inexplicit terms. The effect, therefore, of according to the objection taken bythe learned counsel for the Respondent would be to cut down by implication theprovisions of cl. 15 of the Letters Patent, which I think would be against allprinciple, for a right or power vested by Statute can be taken away or divestedonly by express enactment and not by mere suggestion based upon inferences. Inmy opinion sec. 588 of the Code of Civil Procedure applies only to orders madeby Subordinate Courts which derive their powers from the Code. The CivilProcedure Code is applicable to the Original Side of the High Court in so faras the procedure is concerned, and some of its provisions have no doubt had theeffect of curtailing the right of appeal by giving finality to certain ordersof a judge exercising simply the Ordinary Original Civil Jurisdiction of theHigh Court. In other words it lays down an uniform procedure for all Courts ofOriginal Civil Jurisdiction, including the High Court on its Original Side. Butthe powers of the High Court are not derived from the Code and consequently anorder of a judge of the High Court exercising its Original Civil Jurisdictionthough made in accordance with the procedure laid down in the Code can hardlybe said to be made " under the Code." Besides sec. 589 of the Codeindicated, to my mind, that the preceding section was applicable only to theorders of Subordinate Courts. Another argument advanced on behalf of the Respondentrequires some attention. It was contended that it would be anomalous to give aright of appeal from every order of a judge of the High Court exercising singlyits Ordinary Civil Jurisdiction whilst restricting that right in the case oforders made by Subordinate Courts. To my mind the anomaly suggested ishypothetical. In the first place only such orders of a judge of this Court areappealable under cl. 15 as fall within the category of "judgments."In the second place many of the orders of Subordinate Courts not appealableunder sec. 588 are subject to revision under sec. 622 of the Code. And as thissection is not applicable to the High Court, the Legislature, it seems to me,has advisedly left untouched the provisions of cl. 15. Apart therefore from theexpress ruling in the case of Hurrish Chunder Chowdhry v. Kali Sunderi Debi I.L, R, 9 Cal. 482, 494; L, R, 10 I, A. 4 (1882)., I am of opinion that theobjection is untenable. The Madras and Allahabad High Courts have tried torestrict the decision of their Lordships on the point in question to what iscalled "the facts" of the particular case. I am not prepared to adopteither the reasoning or follow the views expressed by the learned judges. Thescope of their Lordships decisions must be understood by the light of thecontention raised before them.

33. As regards the contention that the order appealedagainst is not a "judgment" within the meaning of el. 15, it must beremembered that it was made under sec. 521 of the Code, which provides the differentgrounds on which (and no other) an award shall be set aside, one being thecorruption or misconduct of the arbitrators or umpire. And it decides themerits of the question between the parties by determining the right of theAppellant to have the award set aside on the ground of the misconduct of thearbitrators. Sec. 522 does not affect the character of the decision under sec.521, for the judgment under sec. 522 follows as a matter of course when theright of the party questioning the award is one determined or adjudicated. Theorder therefore falls strictly within the definition of the word"judgment" in cl. 15 given by Couch, C. J., in the case of TheJustices of the Peace of Calcutta v. Oriental Gas Co. 8 B. L. R. 433, 452(1872).

34. I agree therefore in holding that the present appeal ismaintainable. As regards the merits of the case it seems to me difficult to saythat the view taken by Mr. Justice Sale is incorrect. It is possible that thearbitrators acted somewhat unreasonably in cancelling the date fixed on the 3rdof January and taking up the case on the evening of the 7th. That evening,however, nothing was done in consequence of the protests of the Appellants, andthe arbitrators appointed next morning to proceed with the arbitration. On the8th neither the Appellants nor their attorney appeared and the case was againadjourned. On that same date Mr. Rutter, attorney for the Appellant, wrote tothe arbitrators the letter to which attention has already been called. No stepwas taken to obtain an adjournment from the arbitrators or to represent to themin a proper spirit that the hasty manner in which they were proceedingprejudiced the Appellants and that they, the Appellants, required more time toget themselves ready. Had the arbitrators refused to accedo to such anapplication, matters might have stood on a different footing but in the face ofMr. Rutters letter it is difficult to say that the learned judge in the Courtbelow is wrong in holding that the Appellants had failed to make out asufficient case for setting aside the award. I therefore agree in dismissingthe Appeal No. 10 of 1898.

.

Toolsimony Dassee and Ors. vs. Sudevi Dassee and Ors.(17.02.1899 - CALHC)