( 600 )
Present; Bertram O.J. and De Sampayo J.
ARACHCHI APPU et of. v. MOHOTTI AEPU et of.
4r—D. C. (Inty.) Regatta, 5,521.
A rbitration—Reference signed by plaintiffs and not by defendants—Award in favour of defendants—Objection by plaintiffs thatreference was not in order not being signed by defendants—CivilProcedure Code, s. 676.
Plaintiff's who signed the reference to arbitration being dis-satisfied with the award moved to set it aside on the ground thatdefendants did not sign it.
Held, that the objection to the award was good.
The provisions of the Civil Procedure Code in regard to arbitra-tion are rigorously and literally to be complied with.
rpHE facts are set out in the judgment.
Reuneman, for the appellants.
D. B. Jayatileke, for the respondents*
March 13,1922. Bertram C.J.—
In this case we have to decide a technical objection to an award.The arbitrator was appointed in pursuance of a joint motion by theproctors of the two parties. But it turns ont that, so far as thedefendants are concerned, neither they nor their proctors actuallysigned this motion. There was thus a failure to comply with section676 of the Civil Procedure Code, which requires in effect that theapplication with reference to arbitration shall either be signed bythe parties themselves, or by their proctors in pursuance of an expressand special written authorization by the parties. It is suggestedthat there was a double irregularity: in the first place, the appli-cation was not signed by both the proctors who jointly presentedit; and in the second place, there was no written authorization bythe lay clients empowering the proctors of the defendants to takethis step. As I have said, the objection is a technical one, and theproctors who actually appeared for the defendants in the arbitra-tion, if I may say so, very conscientiously and properly declinedthemselves to be responsible fox putting forward the objection*But we have to follow the previous decisions of this Court, and itappears to me that we are bound by them.
( «» )There are two Foil Court decisions cited by Ur. Keunemafi(Binbarahgmi v. Kiribanda Muhandiram1 and Gonsdtes v. HenryHolsinger *), in tie fist of which all the previous authorities are-reviewed. Both these decisions are decisions not upon our CivilProcedure Code, bat upon a section of the old Arbitration Ordinance,namely, section 12 of Ordnance No. 15 of 1868. I have comparedthat section with section 676 of the Civil Procedure Code, and I. cannot see any adequate ground for distinguishing it from the lattersection. Moreover, the same view has been expressed by a Courtof two Judges with regard to section 676 itself. J refer to thejudgments of Wood Benton and Grenier JJ. in Pitche Tandy v.Fernando? The Court there expressed the opinion that the pro-visions of the Civil Procedure Code in regard to arbitration arerigorously and literally to be complied with. The foots in that easehave a certain similarity to the facts in this case. It is pointedout in the judgment of Wood Benton J. that the plaintiffs-respondents who did not sign that application would not have beenbound by the award if it had been adverse to them, and theycannot take advantage of it when it is in their favour; and it isthis observation that Mr. Keuneman, who appears for the plaintiffs,chiefly relies upon. In the present case the plaintiffs actuallysigned the reference to arbitration. They are dissatisfied with theresult, and now move to set the award aside on the ground that thedefendants did not sign it, and would not have been hound by theaward if it had been adverse to them. I think it would serveno useful purpose to refer this case to the Full Court in viewof the two previous decisions of the Fall Court already referred to.Bad the matter been res Integra,!. should have preferred to havefollowed the principle of Andrews v. EIUs? where it was held thatthe parties to a cause "having consented that a case should be triedwithout a jury by a Judge who only had jurisdiction so to tryit by the written consent of the parties, one of these parties couldnot be heard, after verbally consenting and after taking part in thetrial, to insist upon the statutory requirement of a written consent.The local cases are, however, too strong to allow us now to followthat principle. I regret, therefore, that, in my opinion, this appealmust be allowed, with costs.
Be Sampayo J.—I agree.
* (1912) 14 N. L. B. U.*2SL. J. Q. B. 1.
1 IS. G. O. 99.*18.0. O. 101.
ARACHCHI APPU et al v. MOHOTI APPU et al