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'Present; De Sampayo and Porter JJ.
FERNANDO t>. SABARATNAM.155—D. C. Colombo, 47,785.
Arbitrator's fee—District Judge firing the amount of the fee and directingeach parly to pay an equal share after decree—Jurisdiction.
After decree -was entered in terms of an award, the arbitratorasked for his fee, and the District Judge fixed the amount of thefee, and directed that it should be paid by both parties in equalshares.
Held, that the Court had jurisdiction even after decree to fix theamount and make the order it made.
J. HE facts appear from the judgment.
Hayley, for defendants, appellants.
Canakeratne, for arbitrator, appellants.
J. Joseph, for plaintiff, respondent.
October 5, 1922, De Sampayo J.—
This is an appeal by the defendants from an order allowing certainamounts to the arbitrator as costs of the arbitration. It appearsthat the matter in dispute was referred to arbitration, and in thereference the arbitrator was given power to award costs of theproceedings as well as costs of the arbitration, but in making theaward the arbitrator did not include any provision as to the costs.-Subsequently the plaintiff, who was the successful party, movedthat the Court should make an order allowing him the costs of theproceedings and of the arbitration. This motion would appear tohave been made after the decree had been entered in terms of theaward, and the District Judge refused the motion on the groundthat he could not alter the decree when he had once entered it.There was an appeal to this Court by the defendants from the mainorder, and at the same time the plaintiff gave cross notice objectingto the refusal of his application for costs. This Court dismissedboth the appeal and the cross notice. In this state of matters thearbitrator himself submitted- to Court a bill and desired the Courtto tax the bill, and, as it were, to allow him a "reasonable amountfor costs of the arbitration. The District Judge considered thismatter, and fixed the amount due to the arbitrator at Rs. 249.30.and at the same time directed that this amount should be paid tothe arbitrator by the parties in equal shares. The defendant has
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Appealed again from this order. The first ground of appeal is thatthere, is no authority for the Court to tax the bill of an arbitrator.There is undoubtedly no special provision with regard to it, but insubstance the arbitrator’s application amounted to asking the Courtto fix a reasonable amount due to him. I think the form of theapplication need not prevent the Court from making the order forthe arbitrator’s costs. In the next placet it is urged that this is too.late, as the Court had already refused to make an order, and thisCourt had dismissed an appeal from that refusal, but it must beremembered that the previous order was made on an application by theplaintiff, who applied that costs be allowed to. him of the arbitration,and that the amount be embodied in .the decree. I do not thinkthe previous order, either of the District Court or of this Court,prevents the arbitrator from making' the present application. Asregards the jurisdiction of the Court to award the costs of an arbi-trator, I think there is sufficient provision made in that respect bysection 211 of the Civil Procedure Code. That no doubt has suee-iaireference to arbitrator’s costs, but it would seem from a work onPractice in India under a section of the India Code, correspondingwith the above section of our Code, orders are made for arbitrator’sfees, but, apart from that provision, I think section 689 of the CivilProcedure Code is specially applicable to a matter of this sort.That 'occurs in a chapter with reference to arbitration, and indealing with the applications to set (wide or correct an award, thissection provides that a Court may also make such orders as itthinks fit respecting the costs of-arbitration if any question arisesrespecting such costs, and the award contains no sufficient 'provisioncoaming them. That section appears to me exactly to fit thecircumstances of this case. Mr. Hayley, for the defendant, finallysays that he really would have had no objection to the Court fixingthe amount by taxing the bill, but he does object to the Courtordering the defendant to pay half the amount. T do not see thatthe Court’s power to apportion costs or to make a special order as towho shall pay the costs is restricted by section 689. Moreover, itwould seem, when the original order referring matters to arbitrationwas made, it was specially directed that the costs of the arbitrationshould be paid by both parties in equal shares. I think the presentorder is merely carrying out the purpose of the original order, which,was acquiesced in and acted upori by both parties.
I think the appeal should be dismissed, with costs.
Porter J.—I concur, and for the same reasons.
FERNANDO v. SABARATNAM