043-NLR-NLR-V-19-DINGIRI-MAHATMAYA-v.-APPUHAMY-et-al.pdf
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1016.
Present : Ennis J. and Schneider A.J.
DINGIRI MAHATMAYA u. APPUHAMY et al.
276—D. C. Kegalla, 3,278.
Arbitration—Enteringjudgment in terms of award without notice—
Appeal.
No notice of filing award was given to any of the parties, nor wasnotice given by Court of the day fixed for entering judgment. • Thedefendant appealed. Objection was raised to the appeal. beingheard on the ground that the defendants should have moved the
– District Court to set aside the order declaring the decree absolute(as the order was not made inter partes) before appealing.
Held, that the appeal was in order.fJlHE facts are set out in the judgment..
Cooray, for defendants, appellants.
W. Jayewardene, for plaintiff, respondent.
Balasingham, for second defendant, respondent.
Cur. adv. vull.
July 21, 1916. Ennis J.— .
In this case the plaintiff brought an ^action for declaration of title,and all matters in dispute were ultimately referred to arbitration.The arbitrators filed their award on March 15. No notice of thatfiling was given to any of the parties. The Court proceeded to givejudgment on the award, but failed to notify the parties of the dayupon which it would act. Thereafter the Court declared the awardabsolute on March 29. -The defendants-appellants appeal fromthis order, on the ground that they had no notice of the filing of .theaward, and no notice of the day fixed by the Court for judgment- asrequired by section 692 of the Code.
A preliminary objection was taken , on the appeal, on the groundthat the defendants should have moved the District Court to setaside its order declaring the decree absolute, as that order was notmade inter partes. In this-case it would seem that a decree has beenentered, and by section 207 of the Code decrees are final, subject :toappeal, and a Court has no power to set aside its decree or to vacateits orders unless provision has been specially made by the Code itself.Those provisions are found in certain cases in chapter XII. and insections 707 and 823, and are limited to cases where decree has beenentered in default of appearance of the parties or in filing pleadings.
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In cases where the matter has been referred to arbitration, theaward of the arbitrator is practically a decision after hearing, andis primd facie outside the case dealt with in ohapter XU. It maybe that a Court would have power on an interlocutory order madeex parte to apply the provisions of chapter XU in cases of defaultby deeming the application to be an action within the meaning ofsection 6 of the Code, but in this case the procedure on arbitrationis specifically laid down in the Code. When an award has beenfiled, section 692 provides that if the Court sees no cause to remitthe award, or any of the matters referred to arbitration, for recon*sideration, and if no application has been made to set aside theaward, or. if it has been made and the Court has refused suchapplication, then the Court shall, after the time for making suchapplication has expired, on a day of whioh notice shall be given tothe parties, proceed to give judgment according to the award.The section then proceeds that upon a judgment " so given " adecree shall be framed, and no appeal shall lie from such decree,except in so far as the decree is in excess of, or hot in accordancewith, the award. In the present case it would seem that the decreeentered has not been entered upon a judgment “ so given," inasmuchas the appellants received no notice of the filing of the award, and,therefore., their time for making application cannot be said to havestarted, much less to have expired, and, further, the Court gave themno notice of the date upon which it would proceed to give judgment.In these circumstances, in my opinion, an appeal would lie, and thatseems to be the basis of the decision in the case of Thepanisa v.ARisa,,1 Pitche Tamby v. Fernando,2 and Seenchi v. Karonissa.3There is also a case, Aitken, Spence <£• Co. v. Fernando, * wherean appeal was allowed in somewhat similar circumstances. lirecases cited by the learned counsel for the respondents, namely, TheCeylon Gemming and Mining Company v. Symons,5 Gargial v. Soma-sundram Chetty, 6 Carolis Appuhamy v. Sinho Appu, 7 and Habibu. Lebbe v. Punchi Ettana,* all appear to be cases in circumstances towhich the provisions of chapter XII of the Civil Procedure Codewould apply. The case of Ghulam Khan v. Muhammad Hassan 9appears to be a case where judgment was entered in accordance■ with the provisions of the Indian Law equivalent to our section 692,and therefore it is not a case on all fours with the present one, which,as I have shown, is a case where judgment has been entered withouta compliance with the provisions of section 692.
For the reasons I have given, I am of opinion that the appeal is inorder. I would set aside the order declaring the award absoluteand the decree, and send the case back for further proceedings in
(1911)14 N. L. J?. 222.s(1896) 2AC.L.R.226.
(1910)14 N. L. R. 73.•(1905) 9N.L.R.26.
a 7 Tamb. 126.7(1901) 5N.L.R.75.
* (1900)4 N. L. R. 35.*3 C. L.R^84.
9 I. L. B. 29 Cal 167.
1916.
Ennis J.
Dingiri
Mahatmaya
Appvhanty
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1916. due course; that is to say, within sixteen days from the receipt ofEnntsTj. the record in the lower Court the appellants may formulate their~7~—. . objections to the award, and thereafter the Court will proceedMdh^maya as laid down in section 687 and the subsequent sections. . Thev. Appuhamy appellants should have the costs of the appeal.
Schnmder J.—I agree.
}Sent back.