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Present: Jayewardene A.J.
KADIRAVEL v. PONNASAMY.
224—C. R. Matcde, 16,011.
Arbitration—Mandate to arbitrator—Absence fromrecord of form No. 108—Civil Proced/wre Code, s. 677.
When an action is referred to aribltration by Court, an order interms of form No. 108 in Schedule H. of the Civil Procedure Codeis signed by the Judge and sent to the aribitrator as his mandate.It cannot be presumed from the absence of such a form from therecord that no order of reference has been made to the arbitrator,
A PPEAL from an order of the Commissioner of Requests, Matale,rejecting the appellant’s objections to the confirmation ofan arbitrator’s award. Two objections were taken against theaward, viz.:—
No order of reference as required by section 677 of the Civil
Procedure Code was made ;
That the award was made after the. expiration of the time
fixed for its delivery.
H. V. Perera (with him Rajakarier), for appellant.
September 22, 1924. Jayewardene A.J.—
This is an appeal from an order rejecting the defendant’sobjections to the confirmation of an arbitrator’s award. Twoobjections have been taken: (1) that no order of reference as requiredby section 677 of the Civil Procedure Pode has been made ; and (2)that the award has been made after the expiration of the time fixedby the Court for its delivery.
In my opinion both these objections are unsound. By virtueof section 677 of the Civil Procedure Code two orders are enteredup. They are orders in forms Nos. 107 and 108 in Schedule II. ofthe Civil Procedure Code. The first order is called “ an order ofCourt referring a matter to arbitration.” There the fact that allthe parties consent to refer the matters in dispute to arbitration isstated, and the fact that by agreement the arbitrator is authorizedto examine the parties and their witnesses, and to compel theproduction of documents, and also the right of an arbitrator toappoint a competent accountant. These facts are embodied in anorder in form No. 107 and signed as an order, by the Secretary in'the case of Distriot Courts and by the Chief Clerk in the case of .Courts of Requests. On this order of court referring the matter
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to arbitration an order of reference is made according to formNo. 108. This is signed by the Judge and it intimates to the personappointed arbitrator the fact of his appointment, the mattersreferred to him, and his right to compel the attendance of witnesses,and the production of documents. Now, it is contended for theappellant that the order according to form No. 108, which is signedby the Judge, should be in the record, and that the order, which isissued to the arbitrator, is the one according to form No. 107. 1 amunable to agree with this contention. I think that the ordersigned by the Judge is the mandate to the arbitrator to hold anarbitration and is forwarded to the arbitrator as his authority toconduct the arbitration. It cannot be in the record, as it is sentto the arbitrator, but it may be, that when the arbitrator delivershis award, he returns his authority with the award. The orderreferring the matter to arbitration signed by the Secretary orChief Clerk is left in the record and shows that the Court has, withthe consent of the parties, referred the matters in dispute toarbitration. I am unable to agree with the appellant’s counselthat it is an order according to form No. 107 that is issued tothe arbitrator. I have consulted the Secretary of the DistrictCourt of Colombo on this matter. He informs me that an ordersigned by the Secretary in termB of form No. 107 is left in the recordand that an order in terms of form No. 108 is signed by the Judgeand forwarded to the arbitrator as his mandate or authority. Now,in the present case the absence of an order in terms of form No. 108signed by the Judge does not show that no order of reference wasissued to the arbitrator. The arbitrator has acted and has held thearbitration. The parties appeared before him and he has made hisaward. I think it must be taken that an order similar to the onein form No. 108 was made in this case, signed by the Judge andissued to the arbitrator to conduct the arbitration. In my opinion,therefore, the first objection- was rightly overruled by the Com-missioner.
The next point taken was that the award was not made withinthe time fixed by the Court. The Court by its order orginallydirected that the award be delivered on or before March 25, 1924.On an applicantion made by the arbitrator this period was extendedfrom time to time and ultimately it was extended to May 26. Theaward was sent to Court with a covering letter filed at page 46 ofthe record and dated May 23,1924. From a note made in the bodyof that letter, I find that it was received by the Court on May 26.If that is so, then the award was made, and filed within the enlargedtime, but learned Counsel contends that, as the journal entry showsthat the award was received on May 30, 1924, the journal entry isconclusive; and the date of the receipt of the award in court mustbe taken to be Mhy 30, 1924. If the award was, in fact, receivedon May 30, 1924, it would be out of time and would be invalid
Jayhwab-DENS A. J.
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but in view of the facts afforded by the letter of May 23, I do-notthink it possible to attach any importance whatever to the entryin the journal. The entry in the journal is not correct. I, therefore,find that the award was made on May 26, and was made within timeand no objection can be taken to it. This ground of objection wasalso, in my opinion, rightly overruled by the Commissioner. Iwould, therefore, hold that the learned Commissioner was right inrejecting the defendant’s objections.
I dismiss the appeal, but I make no order as to costs as the-respondent has not appeared before this court.
KADIRAVEL v. PONNASAMY