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Present: Drieberg and Garvin JJ.
In the Matter of an Application for restitutio in integrum.
342—D. C. Kurunegala, 10,003.
Arbitration—Reference on application of some parties—Award—Validity—Civil Procedure Code, ss. 693.
A reference to arbitration in the course of an action can only bemade on the application of all the parties to it.
An award on a reference by some of the parties only is notbinding even on those who have consented to the reference.
PPLICATION for restitutio in integrum by the second, third,and fourth defendants in the action. The facts are fully
stated in the judgment.
H. V. Perera, for petitioners.
N. E, Weerasooriya, for respondents.
November 13, 1928. Drieberg J.—
This application is by the second, third, and fourth defendantsin the action ; the fourth respondent is the first defendant and theother respondents are the plaintiffs.
The action was for declaration of title. The survey made forthe case shows the disputed area to be lots D, E, and F. Lot Gbelongs to the defendants, and lots A, B, and C, for which decreewas entered for plaintiffs, was apparently not claimed by thedefendants. The petitioners and the fourth respondent are thechildren of Punchiappuhamy Vederale and claim the land byinheritance from him.
The plaint does not state that any of the defendants were minors,though the plaintiffs must have been aware of the fact, for the firstplaintiff made a formal application in the testamentary proceedingsto have this land excluded from it. This, however, must have beenbrought to the notice of the Court, for after issue of summons thefirst defendant appeared and the Court ordered that the minorsshould be produced. The petition states that the first defendantwas appointed guardian ad litem of the second, third ,and fourthdefendants; the typed certified copy of the proceedings annexedto the petition reads: “ Of consent first defendant appointedguardian ad litem of the second, third, and fourth defendants.” Thestatement on this point in the petition was not questioned at theargument in appeal. Stamps were supplied on July 3 and 18 for
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the guardian ad litem appointment, but I cannot find this in the 1928.record. I believe, however, that the appointment was over the jjbieberothird and fourth defendants only, and this appears to be so from the J.
On July 18, 1924, Mr. R. 0. Felsinger, for the defendants, filed a of on Ap-proxy dated July 15 ; this purports to be by the first, second, third,and fourth defendants, the first acting as guardian ad litem of the in integrumthird and fourth defendants, not of the second, whose name appearsas a signatory to the proxy. The second, third, and fourth defend-ants deny all knowledge of this proxy.
I have sent for and examined the record of .the ease’in which theestate of Punchiappuhamy Vederale, the father of the defendants,was administered (D. C. Test}7. Kurunegala, No. 1,998). The seconddefendant, on August 31, 1921, was appointed guardian ad litem ofthe third and fourth defendants and of another son of the intestate,
Podihami, who is not a party to this action. The petitioners statethat when the plaint in this action was filed the second defendantwas of full age, and that when the appointment of guardian ad litemwas made the third defendant had attained majority; there is nocounter affidavit challenging these allegations. There was noapplication supported by affidavit for this appointment, and itcannot be ascertained from this record or that of the testamentarycase what the ages of the second, third, and fourth defendants are.
The case was partly heard on December 15, 1926, and then it wasnoted that of consent all matters be referred to the arbitration ofMr. Walter de Silva, and a consent to reference was submitted onthe same day signed by the plaintiffs and their Proctor, by Mr. R. O.
Felsinger, Proctor for the defendants, and by the first defendantfor himself and as guardian ad litem of the third and fourth defend-ants. Provision was made for the signature of the seconddefendant, but he did not sign it.
On March 11,1927, an order of reference to arbitration was issuedto Mr. Walter ds Silva of all the matters in dispute in the action,the second defendant being named a party. The consent toarbitration should not have been submitted to Court by the Proctorswhen it was not signed by one of the parties and the Court shouldnot have referred the matter to arbitration. A reference to arbitra-tion in the course of an action can be made only on the applicationof all the parties to it. I shall deal further with this feature of thecase.
On May 13, 1927, the arbitrator applied for an extension of timeon the ground that the defendants had failed to see him. OnJune 17, 1927, the second defendant, stating that he was acting onbehalf of himself and “ the three minors,” submitted to the DistrictCourt an affidavit objecting to the case being decided by an arbi-trator, and asking that it be tried by the District Judge of Kurunegala
II3. N. !>4«7 (11‘IB!
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1928. or the Police Magistrate of Dandagamuwa, and ^hat they had notDbieberq consented to arbitration. One of the three minors must be Podi-J. hamy. The Judge directed that the affidavit be referred to Mr.the Matter Felsinger for attention. On June 29, 1927, Mr. Felsinger replied,of an Ap- explaining that the case was referred to arbitration by consent of^rwtttutio^ P*aintiffa and of the guardian nd litem of the minor defendants,in integrum On June 30 the arbitrator made another application for an extensionof time, giving the same reason, that the defendants had not cometo see him. This was allowed and then follows an entry : “ seconddefendant waived ; ” an endorsement to this effect also appears onthe plaint against the name of the second defendant. I do not'know how this came to be done, and I can find no motion paperor application relating to it; the journal entry has no reference toany Proctor being present, and I do not know whether it was onthe application of the Proctors or by the Court on realizing fromthe affidavit of the second defendant and Mr. Felsinger’s explanationthat the second defendant had not joined in the consent to arbi-tration.
The arbitrator began his inquiry on October 25, 1927, notingthat the parties with their witnesses were present save the seconddefendant, who had been waived. He did not record which of thedefendants were present. On December 12, 1927, he gave anaward in favour of the plaintiffs against the first, third, and fourthdefendants for lots A, B, C, D, E, and F, for costs, and for damagesat Rs. 100 a year from July, 1923 ; the decree entered on the awarddoes not specify the month, and awards damages “ from 1923.”
On January 21,1928, a motion paper in these terms was presentedby Mr. Wijeykoon: “ I move to withdraw the proxy granted toMr. R. 0. Felsinger in the above case; ” this is not signed, butMr. Felsinger endorsed on it his consent. Mr. Wijeykoon at thesame time submitted to the Court a statement of objections to the/ award by the first defendant personally—no mention is made ofthe third and fourth defendants—and a proxy by the first defendantalone in favour of his firm. This left the minor defendants un-represented in fact; Mr. Felsinger ceased to act though strictlyhis authority to act, at any rate for the minor defendants, continued,for his proxy had not been revoked by the unsigned revocation andMessrs, de Silva & Wijeykoon could not claim to act for them ;they were thus left unrepresented at a very important stage of theaction, for the inquiry into the first defendant’s petition was fixedfor February 27, 1928, and on that day the first defendant beingabsent judgment was entered in terms of the award. For thisreason alone the judgment entered against them cannot stand.
On March 12, 1928, the plaintiffs’ Proctor applied for executionby issue of writ to recover Rs. 100 and writ of possession for the land.The execution was applied for against the first defendant only, no
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mention being made of the third and fourth defendants. The writ 1928.for the delivery of possession issued to the Fiscal states the defendants 0BIEBBa(,as “ Dingiri Banda Appuhamy and others ’’ and a copy of the J.decree accompanied the writ. The Fiscal reported that the first In ^ Matterdefendant had no objection to the plaintiff being placed in possession, of an Ap-bnt that Ukku Banda Appuhamy and Herat Hamy armed with aknife and a catty threatened to resist by violence the plaintiffs being in integrumput in possession; these were the second and fourth defendants.
The plaintiffs’ Proctor on April 9,1928, applied to the Court undersection 346 of the Civil Procedure Code. In the caption he namedas respondents the first and the second defendants-though in thebody of it he stated that the “ defendant Ukku Banda Appuhamyand the defendant .Herathami (the respondents above named) cameat the Fiscal’s officer ” and resisted the plaintiffs being put inpossession. He asked that the “ respondents ” be cited anddealt with under section 326. No action was taken, no order wasmade on this application, and no entry of it appears in the journal.
On the motion accompanying the application is an endorsement,apparently by the Secretary, that the application was out of time ;this is so, for it was made more than a month after the resistance.
On May 29, 1928, Mr. Madawala, for the plaintiffs, moved thatthe defendant, judgment-debtors, having resisted the Fiscal’s officerand having prevented him from delivering possession of the land,the writ of possession be extended and reissued to the Fiscal forexecution. This was allowed on fresh stamps being supplied.
This was done, and the Fiscal reported that he put the plaintiffs inpossession of the land on June 13. The affidavits of the second andthird defendants, on which the application for restitution b made,are dated June 2, before this execution of the writ, and only referto the previous attempt to execute it.
Now, the plaintiffs’ Proctor should have known when he reissuedwrit that the third and fourth minor defendants were not properlyrepresented, if they were represented at all, after January 21, 1928.
Apart from the fact that Mr. Felsinger discontinued representingthem on a revocation of his proxy not signed by their guardian, theplaintiffs’ Proctor had the duty laid on him not to take any step inthe action against the minor defendants without satisfying himselfthat they were properly represented. Further, it was for the Courtto see that the minors were properly represented. The Courtis not, by the appointment of a guardian ad litem, relievedcompletely from the duty of watching the interests of minors whoare parties to an action (see Segu Nadar v. Howumma el al.1).
Now the decree cannot possibly bind the third and fourthdefendants ; the irregular attempt to cancel Mr. Felsinger’s proxyand the grant of a fresh proxy in favour of Messrs, de Silva &
1 5 Times of Ceylon Rep. 166.
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1928. Wijeykoon occurred on January 21, within the fifteen days allowedDkieberg to ^em un<ier section 687 of the Code to object to the award, andJ. the decree, as I have observed before, was entered when they wereJn the Matter ™ unrepresented. It is therefore not necessary to deal withof an Ap- Mr. Perera’s contention that the agreement by the first defendanti*eUtutio°r on behalf of the third and fourth defendants to refer the matter toin integrum arbitration was an agreement or compromise which under section500 of the Code required the special leave of Court; nor need I dealwith another grave irregularity, which is that the appointment ofthe first defendant as guardian ad litem, was made without a writtenapplication and unsupported by an affidavit as required by section493 of the Code, for these proceedings are altogether void foranother reason.
Once an action is before it a Court has no jurisdiction to refer thematter to arbitration except with the consent of all the parties, andan award on a reference by some only of the parties is not valideven between those who have consented to the reference (SethDooly Chand v. Mamuji Musaji ei al.1) in which referenceis made to the judgment in the Judicial Committee in GhulumJilani v. Muhamed Ahmed2 of Lord Macnaghten explaining thedifference between this and other forms of submission toarbitration. The corresponding section of the Indian Code requiresthe consent of all parties “ interested ” in the suit. The seconddefendant in this action is such a party.
The second defendant, though not bound £>y the decree on theaward and though in the position of advantage of being free fromanother action by the plaintiffs, for no leave to reinstitute wasobtained when he was waived, joins the third and fourth defendantsin asking that the proceedings be set aside and a trial of the actionordered.
We set aside the order of reference to arbitration and allproceedings thereunder and direct that the action be tried asbetween the plaintiffs and the first, second, third, and fourthdefendants ; the plaintiffs will pay to the second, third, and fourthdefendants the costs of this application.
I cannot conclude this judgment without a note of disapprovalof the very unsatisfactory way in which the interests of theminor defendants were treated by the Proctors concerned and theinadequate control by the Court over most important steps inthe action which affected them.
Garvin J.—I agree.
' (1916) 21 C. IV. N. 3S7.
2 I. L. R. 29 Cal. 167.
In the Matter of an Application for restitutio in integrum