( 458 )
Present : Bertram C.J. and Sctineider J.
MUD1YANSE et dl. v. APPUHAMY.
150—D. C. (Inty.) Kegalla, 5,500.
Arbitration—Case sent back to Court for decision of a point of late—Return to arbitrator—No fresh motion signed by parties—CivilProcedure Code, s. 693.
An arbitrator who was duly appointed sent the case back toConrt for the decision of a point of law. The case was again byconsent of parties referred to the arbitrator. No fresh motionwas signed by the parties.
Held, that the sending of the case back to Court for the decisionof the point of law did not supersede the arbitration, and that aparty could not object to the award on the ground that the casewas not properly referred to the arbitrator.
HIS was an action by the plaintiffs for the recovery of a sum ofRs. 842.50 being damages sustained by them by reason of
defendant’s wrongful possession of certain lands described in theplaint ; the defendant filed answer denying his liability andclaiming a sum of Rs. 369 in reconvention.
The parties on March 16, 1922, by a written motion referred thematters in dispute between them to the arbitration of Mr. E. A. P.Wijeratne, Proctor./
On June 14, 1922, the arbitrator returned the record to Court witha letter statihg that the parties desired that a point of law be decidedby the Court. The arbitrator made no award.
On July 4, of consent, the matter was again referred to thearbitrator. There was, however, no fresh motion signed by theparties or reference. The arbitrator on September 14, 1922, filedan award.
On September 29, 1922, the plaintiffs filed their objections to theaward. The objections were inquired into on October 19, 1922, andon October 26, 1922, the District Judge (W. J. L. Rogers on, Esq.)delivered the following order disallowing plaintiff’s application andconfirming the award: —
Mr. Swan for plaintiff objects that the return of the record by thearbitrator on June 14, 1922, resulted in the cessation of his authorityto arbitrate, and the return of the record on July 4, 1922, was notin order without a fresh reference to arbitration. The plaintiff tookpart in the further arbitration proceedings, and 1 do not think he cannow be allowed to object that they were irregular. Nor do I thinkthat they were irregular. The return of the record to the arbitratoron July 4, 1922, was with the consent of parties.
( 460 )
The plaintiff having taken part cannot claim that the . award mnetIMfc
be set aside for any other ground than those enumerated in Boction 6Blt ■ ■ ■Civil Procedure Code. I amunableto agreewithplaintiffs’
Proctor that theof the case, for inquiry amounted to a suppression v*
of the order for arbitration. The objection in any event is merelytechnical. Counsel for defendantquotes3 S.C.C.HO,in which
theSupreme Courtstated stronglyitsopinion on technicalobjections
to an award made by the partyagainstwhom theawardhas gone.
Plaintiffs' proctor quotes the judgment in D.C. 5,621 of this Court.
Inthat casetheoriginal applicationfor arbitration wasbad, and
so whole proceedings were irregular. In the present case the appli-cation was in -order, and any irregularity that occurred was due to theparties agreeing to the case being referred bach to Court for thedecision of a legal point. Ihe point was not decided, and theirregularity, ifany,was cured bytheparties agreeing to thereturn of
riterecord tothearbitrator forhieaward in accordancewith the
reference. In my opinion, however, then was no irregularity at all.
The application to set aside the award is refused.
Keuneman, for the appellants.
H. V. Perera, for the respondents.
• January 18, 1023. Bertram C.J<—
The only question that arises on this appeal is whether the fact that the Court fixed for inquiry a matter which was brought beforei it by the arbitrator in an arbitration, sending the case back to theS Court for the consideration of a point of law, ipso facto, superseded the arbitration under section 688 of the Civil Procedure Code.1 The suggestion is purely technical, and seems to me quitej unarguable. The parties to ihe arbitration by consent agreed thati the arbitrator should send it back to the Court for the determinationd of the point of law. The Court thereupon fixed the matter fori inquiry without considering in any way the regularity of the action
of the arbitrator or its possible effect on the case ; and when thel parties came for the inquiry, no inquiry was held, and by consent
the case was remitted to toe arbitrator. I see nothing in this1 to supersede the functions of the arbitrator. I should be veryt sorry if toe decision, which this Court felt bound to give in the cue
of Arachchi Appu v. Mohotti Appu 1 with reference to the necessity
of a strict compliance with toe conditions of the Code relating tof the actual reference to arbitration, should be interpreted ast requiring the meticulous consideration of technicalities at everyi stage of the arbitration, and as authorizing toe parties to play fasti and loose with their formal consents. In my opinion the appeali should be dismissed, with costs.
! Schneider J.—I agree.
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MUDIYANSE et al. v. APPUHAMY