099-NLR-NLR-V-39-KANDY-CO-OPERATIVE-URBAN-BANK-v.-SENANAYAKE-et-al.pdf
352
Kandy Co-operative Urban Bank v. Senanayak*..
1937
Present: Moseley J. and Fernando AJ.
KANDY CO-OPERATIVE URBAN BANK v. SENANAYAKE et al
Co-operative Societies Ordinance, No. 16 of 1936—Award of arbitrator—Appli-cation for execution of award—No notice to respondent—Civil ProcedureCode, s. 224.
There is no legal requirement that notice of an application for executionof an award made .by an arbitrator under section- 45 of the Co-operativeSocieties Ordinance should be issued to the party affected.
HIS case was instituted as a test case to find out whether notice
T should be issued to the respondents before a writ is granted interms of the award of an arbitrator under section 45 of the Co-operativeSocieties Ordinance, No. 16 of 1936. The learned District Judge held thatnotice must issue and the plaintiff-appellant appealed against that order.
J. E. M. Obeyesekere, C.C., for plaintiff, appellant.—Section 45 (1) (b)of the Co-operative Societies Ordinance, No. 16 of 1936, provides themethod of settling disputes between the society and a member. Thedispute was referred to the Registrar, who in terms of section 45 (2)referred it to an arbitrator. The Co-operative Societies Ordinance,No. 34 of 1921 is repealed, but the rules made under section 37 of thatOrdinance are kept alive by section 52 (2) of the 1936 Ordinance. Theyare published in Gazette No. 8,179 of November 30, 1935. Applicationwas made under rule 29 (k) to the District Court of Kandy to enforce theaward of the arbitrator, which would be enforced in the same manner asa decree of the Court. Hence section 225 of the Civil Procedure Code,1889 applies. There is no provision in that section to serve notice ofapplication to the judgment-debtor. The only section in the CivilProcedure which provides for such notice is section 347.
A certified copy of the award is sufficient to inform the Court of theaward. The Court cannot inquire whether the award is correct or not.Under section 45 (5) of the Co-operative Societies Ordinance, No. 16 of1936, the award is final. If any adjustment is made in the award itmust be stated in the application for writ as required by section 224 ofthe Civil Procedure Code.
The Court is merely aiding the execution of the award. The learnedDistrict Judge assumed that the principle in Mackie v. TheCommissioner of Stamps and in Gunawardene v. Gunasekera’, namely,that no order must be made affecting a person without hearing him,prevented him from issuing writ without notice on the respondent.Here the arbitrator heard the respondent and his order is final ifno appeal is preferred. The Court has to perform a mere ministerial•duty. He is asked to help in the collection of the money. There is no >legal requirement to issue notice. The provisions laid down in section224 of the Civil Procedure Code are sufficient to prevent any miscarriage■of justice. If the material before the Court is sufficient, the writ mustissue, but if it is not sufficient, it can direct further material to be placedbefore it.
114—D. C. Kandy, 124.
Cur. adv. vult.* (1922) 1 Timet Law Rep. 90.
(1935) 15 Ceylon Law Rec. 123.
353
MOSELEY J.—Kandy Co-operative Urban Bank v. Senanayake.
November 11, 1937. Moseley J.—
This is an appeal against the order of the District Judge, Kandy, uponan application by the appellant for a writ of execution upon the awardof an arbitrator, to whom the matter had been referred, as provided bysection 45 of Ordinance No. 16 of 1936. The procedure for enforcing anaward of the arbitrator appointed by the Ordinance is laid down inrule 29 (k) of the rules published at page 1755 of the Government Gazette,dated December 6, 1935. These rules were framed under section 37 (2) (s)of Ordinance No. 34 of 1921 (now repealed) but are kept alive by OrdinanceNo. 16 of 1936 until replaced.
Rule 29 (k) is as follows :—■
" A decision or award shall, on application to any Civil Court havingjurisdiction in the area in which the Society operates, be enforced inthe same manner as a decree of such Court ”.
The enforcement of a decree is provided for by sections 224, 225, and347 of the Civil Procedure Code. The last mentioned section may beignored for the purposes of this case, since it applies only to applicationsfor execution where more than a year has elapsed since the date of thedecree. Section 224 prescribes the particulars which are to be set out inan application for execution ; section 225 requires the Court to satisfyitself that the application conforms with the directions contained insection 224, and empowers the Court, unless so satisfied, to refuse toentertain the application. If satisfied, the Court is required to directthat execution shall issue.
In the present case the application was made substantially in the formprescribed in schedule II. to the Civil Procedure Code, but I may at onceobserve that the failure on the part of the “ legal representative ” of theplaintiff society to furnish therein several necessary particulars would, inmy opinion, have justified the District Judge in summarily refusing toentertain the application. That, however, for the purposes of this appeal,which is from a judgment in a test case, is beside the point, as also is theomission of the said legal representative to make the application bymotion as provided by section 91 of the Code. These matters are merelymentioned as indicative of the somewhat casual manner in which theassistance of the District Court was invoked.
The learned District Judge after hearing Counsel for the applicant wasof opinion that before writ should issue notice of the application shouldfirst be served on the respondents. The question which he set himself toanswer was enunciated by him as follows: —“ Before a Court orders writto issue in the circumstances of this case, is-it lawfully requisite thatnotice of the application should be served on the parties against whom it issought to issue writ ? ”
Now, it is clear that no such notice is required by the Civil ProcedureCode except in cases where the application is made more than one yearfrom the date of the decree, but the learned District Judge sought to drawa distinction between an award by an arbitrator and a decree of the Court.That an award should be enforced in the same manner as a decree is not,said he, tantamount to saying that the award shall be deemed to be adecree of the Court. He then proceeded to deal with the matter in the
. 354
Senaratne v. Perera.
light of convenience. It was conceded by Counsel that if the respondentshad paid the debt they would be entitled to be. heard. It is more conve-nient, he thought, to hear them on that point before, rather than after,writ had issued. That may be true, but it seems to me a not verysubstantial ground upon which to base the conclusion that notice mustissue .on the parties to be proceeded against. In arriving at that conclu-sion the learned District Judge considered the cases Mackie v. The Com-missioner of Stamps et al.1 and Gunawardene v. Gunasekera". Each ofthese cases was an appeal from the order of a Court enforcing an order bythe Commissioner of Stamps, and in each case a ground of appeal wasthat the order has been made without giving the party sought to beaffected an opportunity of being heard. Counsel for the appellantsubmitted that the learned District Judge misdirected himself in holdingthe decisions in these cases applicable to the present case. With thatsubmission I feel bound to agree. The respondents had an opportunityof being heard before the arbitrator and by section 45 (5) his decision isfinal. It seems to me that their position in no way differs from that of ajudgment-debtor under a decree and the latter is not entitled to be heardexcept as provided by section 347 which, as I have said, does not applyin this case. It is true that in the ease of a decree the Court- may, ifnecessary, satisfy itself that the application is in order by reference tothe record of the action. In the case of an award it is unlikely that theCourt will have any such material before it. If the Court, in order tosatisfy itself, wishes to examine the parties sought to be affected, there is,in my opinion, no reason why it should not give them notice of theapplication. I am, however, unable to agree that there is any legalrequirement that such notice should issue.
I would therefore allow the appeal.
Appeal allowed.