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Jmw 6, inilPresent: Wood Renton J.
THEPANISA v. ALLISA.
136—C. R. Avissawella, 6,971
Arbitration—Award—Appeal lies from order disallowing objection toaward—Procedure for entering up judgment in terms of award
Where a person files objections to an award, and the objectionsare disallowed, the Court should not enter judgment in terms ofthe award at once; there ought to be an interval between thedisallowance of the objections and the giving of judgment in termsof the award ; and notice of the day fixed for judgment should begiven to the parties.T*
If objections to an award are over-ruled, it is open to the objectingparty to appeal. The last clause in section 692 prohibits appealsonly from decrees entered up on judgment in pursuance of theaward.
fJ>HE facts appear sufficiently from the judgment.
Vernon Grenier, for respondent.—No appeal lies against the decreein this case, which has been drawn up in terms of an award. Theappellant may have his remedy by way of revision, but not by wayof appeal. See Prolis v. Amerasuria} Casseem v. Packeer,2 Menikav. Ismail Dawudu.3
Aserappa, for the appellant.—Numerous appeals have beenentertained by the Supreme Court under similar circumstances.
Counsel then argued on the merits.
'(1901) 5 N. L.R. 178.
[1906) IBr. M,
2 (2592) 2 C. L. R. 09.
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June 6, 1911. Wood Renton J.—
Various points of interest have been argued in this case. Onbehalf of the plaintiff-respondent, Mr. Vernon Grenier took apreliminary objection that no appeal lay, in view of the provisionsof section 692 of the Civil Procedure Code. That section, if I maysay so respectfully, is by no means a model of draftsmanship, and,so far as I am aware, there are no reported decisions on the pointwith which I am about to deal. The section in question provides,in effect, that no appeal shall lie from a decree in pursuance of ajudgment given according to the award, except in so far as thedecree is in excess of, or not in accordance with, the award. It hasbeen held, in cases with which we are familiar, that even althoughan appeal is not competent, it is still, open to the Supreme Court toreview decrees entered up on judgments in accordance with theterms of award, in the exercise of its powers of revision. But in thepresent case it appears to me that the learned Commissioner ofRequests did not comply with the provisions of section 692, requiringthe Court to give judgment according to the award on a day ofwhich notice shall be given to the parties. Here the arbitratormade his award, the appellant filed objections, the Court held aninquiry into those objections, and reserved its order thereon for aparticular day. On that day the Court proceeded to disallow theobjections, and at the same time to. give judgment in terms of theaward. That, in my opinion, was an irregularity. I am quiteaware of the difficulty in the construction of section 692 to whichthe clause or if it has been made, and the Court has refused suchapplication ” gives rise. But 1 think that the reasonable constructionof the section is this—that there ought to be an interval betweenthe disallowance of objections and the giving of judgment in termsof the award, and that notice of the day fixed for judgmentshould be given to the parties. I think that the reason for thatinterval is to give parties, affected by the decision of the Court onobjections to an award, the opportunity of appealing. It seems tome that the real construction of the section on the point that I amconsidering is this : If objections to an award are over-ruled, it isopen to the objecting party or parties to appeal. The last clausein section 692 prohibits appeals only from decrees entered up onjudgments in pursuance of the award. It does not take awayfrom the aggrieved party the right to appeal from a decision by theCourt on objections to an award before decree has been entered ;and in view of the serious questions which are frequently disposedof by awards, I think that it is most important that such a rightof appeal should exist. If, however, the objecting party does notappeal from the disallowance of his objections; and judgment isentered up, in terms of the section, upon the award, he has no longerany right of appeal, and if he is to succeed at all in getting thedecree reviewed, it must be reviewed by the Supreme Court in
June 0, 1011
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■June 6, 1911
Thepanisa r.A Him
revision. In my opinion this preliminary objection fails. I haveonly a few words to say on the merits of the case. None of theobjections urged before me could possibly bring the case under thehead of misconduct on the part of the arbitrator. If any effectcould be given to them at all, it could only be under sections 688 or690, which define the powers of the Court as to the correction andremitting of awards respectively. On the evidence, however, 1 donot think that any case for an interference with this award has beenmade out. It is true that the terms of the original reference arevague. It is also true that, at the inquiry before the arbitrator,the issue between the parties was fought out as one of prescriptivepossession. At the same time, both sides were heard fully, and thearbitrator has written .an award, in which he carefully analyses theevidence and comes to a conclusion in the respondent's favour,which 1 see no reason to think is unsound. There is only onefurther point urged by Mr. Aserappa in support of the appeal, asto which I wish to say a word. His contention was that thearbitrator here had dealt with the question of jurisdiction, thatthat was a question for the Court, and, further, that even if it wascompetent for him to adjudicate on the value of the land at all, heshould have done so as a valuator, and not as an arbitrator,,andshould have given sworn evidence in the Court of Requests insupport of his conclusion. This argument is ingenious, and wasforcibly pressed upon me. But I think it is unsound, and for thefollowing reason. I find in the journal entries the followingminute : “ Parties move that the matters in dispute be referredto Mr. Bandaranayake for the valuation of the land, and if it isunder Rs. 300 to arbitrate, or otherwise to return the same withhis valuation.” The meaning of that minute, in my opinion,clearly is that the parties were prepared to accept the valuation ofthe arbitrator as a matter to be decided by himself. The arbitratordid inspect the land, and has given reasons for the conclusion atwhich he arrived as to its value. I dismiss the appeal with costs.
THEPANISA v. ALLISA