4W8*, Present: Dalton J.
APPUHAMY w. DINGIRI MAHATMAYA.
185—C. R. Avissawella, 13,524.
Arbitration—Parties agree to arbitrate during course of proceedings—Minute of consent—Civil Procedure Code, s. 676.
Where the parties to an action came to an agrrement for arbitra-tion during the course of the proceedings and the Court requiredthem to sign a minute of consent,—
Held, that there was a sufficient compliance with therequire-ments of section 676 of the Civil Procedure Code.
PPEAL from a judgment of the Commissioner of Requests,Avissawella.
Garvin, for appellant.
James Joseph, for respondent.
Tebruary 6,1928. Dalton J.—
This is an appeal by the defendant, who is sued for the recoveryof the sum of Rs. 35, alleged to be the value of the plaintiff’s shareof 8 trees standing on certain land. After the case had been heardin part, the defendant admitted the plaintifif’s title to an undivided
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one-third share of the land upon which the trees stood. It was thenagreed between the parties to refer the question of damages, andas to whether the damage had been done as alleged by the plaintiff,to an arbitrator. The parties deposited a sum by agreement forthe expenses- of arbitration. The arbitrator went to the spot, madehis inspection, and also made his award. The award was againstthe defendant.
He now appeals, first, on the ground that there was no applicationfor a reference under section 676, and secondly, that the award isno proper award in that it does not answer the question that wasreferred to the arbitrator. In regard to the second point I am-unable to agree with counsel that the award does not specificallydeal with the question which was referred to the arbitrator. Hecomes to the conclusion after inspecting the land and after takingevidence that 6 trees had been cut down on the land within the timementioned in the reference, and he awards damages to the plaintiff.
It is urged on the appeal that he does not specify that the damageswere done by the defendant. Counsel, however, cannot explainhow he awards damages to the plaintiff except that he was satisfiedupon the evidence that the damage was done by the defendant asalleged by the plaintiff. The award, in my opinion, fully answersthe question referred to the arbitrator.
On the first point it is urged that there has been no applicationin writing by the parties as required by section 676 of the CivilProcedure Code. What happened in the Lower Court, as far as onecan judge from the journal entries, is that in the course of theproceedings the parties came to an agreement, as mentioned already,for an arbitration, and applied to the Court to direct an order ofreference to the Court Mudaliyar as arbitrator. Thereupon theCourt required both the plaintiff and the defendant personally tosign a Court Minute.
Mr. Garvin, for the appellant, suggests that this is merely a signatureto an agreement to arbitrate. I am quite unable to limit thesignature in that way. It may be a signature to the agreement.It is also undoubtedly, in my opinion, a signature to the applicationwhich was made to the Court, and which the Commissioner hasrequired in writing to enable him to make an order of reference to anarbitrator. I am, therefore, unable to agree that there has been noproper reference; it comes within the terms of section 676;
I would therefore dismiss the appeal with costs.
APPUHAMY v. DINGIRI MAHATMAYA