053-NLR-NLR-V-05-PROLIS-v.-AMERASURIYA.pdf
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1901.
August 13and 16.
PROLIS v. AMERABURIYA.
D. C., Galle, 5,123.
Appeal against decree in terms of an award—Civil Procedure Code, ss. 676, 692— Want of application to Court for order of reference—Irregularproceedings—Revision.
No appeal lies against a decree made in terms of an award, but if theproceedings before the arbitration and the award are irregular, theremedy is by application to the Supreme Court for revision aDd not byappeal.
T
HIS was an appeal against a judgment entered in terms ofan award. When the action came on for trial in the Court
below, the parties consented to go to arbitration, but they did notsign any application as provided by section 676 of the Code. The
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arbitrator filed his award against the plaintiff on 24th November,but the award was not stamped. The judge granted furthertime for stamping the award. No definite period was stated.The award was stamped and the parties were served withnotice of the filing of the award on the 16th January. Pleadersand parties were absent, and no cause being shown judgmentwas entered according to the award.
Plaintiff appealed.
Wendt, for appellant.—The decree is curious. The plaintiffsare to pay a sum of money to the first defendant, and theplaintiffs and one of the defendants are to pay another sumto the first defendant. Section 676 of the Procedure Coderequires that a written application should be made by the partiesfor arbitration. Without a written application there cannot be avalid reference, and the fact that parties have appeared beforethe arbitrator cannot cure the defect. Casim v. Dias, 2 N.L.R.319. The absence of any objection before judgment cannot makean award that is void effective. Subsequent acquiescence maywaive an irregularity, but not an act that is absolutely void.Bambarahami v. Kiribanda, 7 S. C. C. 99. The award isinoperative, and no decree can rest on it. The award was badfor another reason. When it was filed, it was not stamped, andit could not be stamped afterwards.
James Pieries.—This is an appeal against a decree based on anaward, butnosuch appeal lies under section 692, unlessthe
judgment is not in accordance with, or in excess of, what isgranted intheaward. Thatbeing not the ground here,the
appeal cannot be heard. Casseem v. Packeer, 2 C. L. R. 69. Asto the case in 2 N. L. R., the case was not an appeal. It was aCase in revision. The points urged by appellant may be raisedin revision, but not on an appeal. As to the objection that thewant of a written application invalidates an award, the caseVnniraman v. Chathan, 1. L. R. 9, Madras 451, is in point.The Courtheldthere that aparty applying under section622
of the Indian Code for relief must show that he has notcontributed by his own conduct to his being placed in thatposition hefindshimself in.[Lawrie, A.C.J.—In D.C., Galle,
42,400, 2 S. 0. C. 85, the Supreme Court held that the absenceof the application in writing was incurable.] But"1 such questionsdo not arise now, because this appeal does not lie. As to theabsence of notice of the filing of the award, the record showsthat pleaders were present and took notice on the day the award
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August 13and 16.
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was filed. ,The only notice required is that of the filing of theaward, and here the judge gave the notice instead of serving it.Plaintiff stands on his legal rights, but according to his legalsights this appeal is bad, and the question can only be raised inrevision.
Wendt (in reply).—Where there are decisions both in Indiaand in Ceylon, our own must be preferred, and 2 N. L. R. 319is binding on this Court. 2 C. L. R. 69 is distinguishable. Therethe award was valid, but irregular. Here the award is void.There the question was whether the arbitrator should not re-consider bis award. Here we say that we cannot accept thearbitration. [Lawrie, A.C.J.—But you are appealing againsta judgment based on an award, and you cannot do that.] It istrue that I cannot appeal if the judgment is based on anaward, but we are now dealing with a groundless judgment.There was no award here at all. What purported to be that wasa nullity. Section 692 can only apply to appeals against judg-ments based on award, but this judgment was not based onan award. Our appearance and acquiescence cannot ratify anullity.
Cut. adv. vult.
16th August, 1901. Lawrie, A.C.J.—
This is an appeal against a decree in terms of an award.
The 692nd section is imperative. “ No appeal shall lie from“ such a decree, except in so far as the decree is in excess of or“ not in accordance, with the award."
It is urged for the appellant that the award is a uullity, thatthere was no written consent of the parties to the submission, sothat the reference to the arbitrator was bad, he had no properauthority to act. The regularity of the proceedings and of theaward might have been objected to; the objection would probablyhave been sustained, but no objection was takeD in the Courtbelow. If the plaintiff had asked the Court to dispose of theobjection, an appeal would have been competent against thejudgment on that point.There is here no judgment of the
District Court which we can consider in appeal.The most
recent case (2 N. L. R.. 319) in which proceedings in anarbitration were held to be void for want of a written submissioncame before this Court-in revision.
In my opinion this appeal must fail.
Moncreiff, J.—I am of the same opinion.