023-NLR-NLR-V-14-SUBANERIS-APPU-et-al-v.-APPUHAMY-et-al.pdf
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Feb. 13, mi
Present: Hutchinson CJ. and Van Langenberg A.J.SUBANERIS APPU et al. v. APPUHAMY et al
360—D. C. Kurunegala, 3,739.
Arbitration—Award not made within time allowed by Court—The Courthas no power to delegate to the Secretary the duty of fixing the datefor the return of award—Civil Procedure Code, ss. 677, 683, 691.The matters in dispute in .this case were referred to arbitration,and the arbitrator was required to deliver his award on or beforeJuly 12, 1910. On that date, no award having been made, theDistrict Judge extended the time, but fixed no period within whichthe award was to be delivered ; it was left to the Secretary to fixthe date, and he fixed the date for the 29th. The Secretary wroteto the arbitrator to send the award without delay, but did notmention any date. The award was filed before July 29.
Held, that it was not competent for the Judge to delegate to theSecretary the duty of fixing the date; that the award in this case wasnot valid, as it was not made within the time allowed by the Court.
rJ*HE facts arc set out in the judgments.
Seneviratne, for the second defendant, appellant.
A. St. V. Jayewardetie, for the respondents.
Cur. adv. vu//.
February 13, 1911. Hutchinson C.J.—
This action^ was brought^for a declaration of the plaintiffs’ titleto, and to recover possession of, a piece of land which the defendantshad undertaken to plant ; the first defendant admitted the plaintiffs’title, but claimed compensation for planting ; and the seconddefendant claimed that the action should be dismissed, and that theplaintiffs should be ordered to pay certain damages and to convey ashare of the land to the defendants.
The matters in issue were referred to arbitration, and the order ofreference fixed July 12 as the date on or before which the awardshould be made. The arbitrator took evidence, but did not send hisaward to the Court by that date. The reason for the delay appearsto have been that the parties had not supplied the arbitrator withthe necessary stamps to put on the award ; he says in his evidencethat he told the Secretary of the Court that he could not send theaward as the stamps were not supplied ; the Secretary confirms this ;and the second defendant says that he had not then (i.e., on July 12)his share of the stamps for the award.
The arbitrator made no formal application to the Court for anextension of time, nor did any of the parties do so, but the Secretarybrought the matter before the Judge on July 12, when the Judgemade this order in the minute book ; “ Extend and call,” which he
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and the Secretary say meant “ Extend the time and call for the Feb' 13>1911award.” According to the usual practice in that Court the minutes Hutchinsonare entered in the journal of the case and signed by the Judge the cnext day. That was not done on this occasion, because the record, Subanenaincluding the journal, was with the arbitrator. The minute in theminute book does not fix the date to which the time was to be PPu/mmyextended ; the Secretary says that it is the practice for him to givethe date (/>., I suppose he means to fix it and insert it in thejournal) according to the state of the roll : and he says that in thiscase the time was extended to July 29 ; and he produced the calendarin which the case was entered on that date. The Secretary thenwrote to the arbitrator to send the documents without delay, butnot mentioning any date ; and the award was made and receivedin the Court before July 29. The second defendant raised severalobjections to the award. The District Court over-ruled them andentered judgment in terms of the award ; and this is the seconddefendants appeal.
The only point which presents any difficulty is the objection thatthe award was not made in time. Section 691 of the Code enactsthat “ no award shall be valid unless made within the period allowedby the Court.” By section 677, when an order is made for referenceto an arbitrator, the Court shall fix such time as it, thinks reasonablefor the “ delivery of the award,” and shall specify the time in theorder. Section 683 enacts that if from any cause the arbitratorcannot “ complete the award within the time specified in the order,”the Court may grant-further time, and may from time to time“ enlarge the period for the delivery of the award.” And bysection 685, when an award has been “ made,” the persons who madeit shall sign it and cause it to be filed in Court; the M making ” of itseems to be one thing, and the “.filing ” to be another afterwards,and the “ filing ” must be the same thing as the “ delivery.” And yet1 think that the word “ made” in section 691 must mean “ delivered.”
The appellant argues that the order of July 12 fixed no time fordelivery, and therefore the order was bad. The Judge’s answer isthat it was left to the Secretary to fix the date, and he did fix itfor the 29th ; that the journal entry should have been “ Extend thedate to July 29, and call for the award ” ; that the journal entrywas not made, for the simple reason that the record was with thearbitrator ; and he said “ I order it to be made now.”
The order of July 12 did not fix any period within whichthe award should be delivered. Therefore the award was notdelivered within the period allowed by the Court, and we arebound to hold that it was not valid. There is no substance inthe other objections made by the appellant.
The decree of the District Court must, therefore, be set aside andthe case go back for trial. Under the'circumstances each partyshould bear his own costs of this appeal.
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Feb. 23, 2.922 VAN LaNGENBERG, A,J.—
Subaneri# In this case the matters in dispute between the plaintiffs and theA^^kamy second defendant were referred to arbitration, and the arbitratorwas required to deliver his award on or before July 12, 1910. Onthat date, no award having been made, the District Judge extendedthe time under section 683 of the Code, but fixed no period withinwhich the award had to be delivered. The Judge says that it isleft to the Secretary of his Court in many cases to fix the dateaccording to fee exigencies of fee roll, and feat the Secretaryextended fee date until July 29.
The award was filed before this date, and the second defendantmoved to set it aside, on the ground, among others, that it wasmade out of time. The Judge found that the “ award was madewithin the extended date allowed by the Court.”
In my opinion it was not competent for the Judge to delegateto the Secretary the duty of fixing the date, and I do not think itcan be said in this case that the “ extended date ” was ” allowedby the Court.”
The question, then, remains whether the omission of the DistrictJudge to fix a returnable day in his order extending the time renderedthat order invalid. Counsel for the respondent referred us to thecase of Muttukutti Nayakan v. Acha Nayakan,l where it was heldthat section 508 of the Indian Act 14 of 1882, which corresponds tosection 677 of the Civil Procedure Code, was merely directory andnot mandatory, and feat therefore the mere omission to fix a time .was not fatal. He argued that if the original order was not voidon account of fee omission, a similar defect in an order extendingthe time would not invalidate it. The Judges who decided theMadras case followed the decision in Narainsingh v. BhagwantKuar.2*
There was an appeal to the Privy Council against the decision inthe latter case, and Lord Morris, in delivering the judgment of theBoard, said : “Their Lordships are of opinion that section 508 isnot merely directory, but that it was mandatory and imperative.Section 521 declares that no award shall be valid unless made withinfee period allowed by the Court, and it appears to their Lordshipsthat this section would be rendered inoperative if section 508 ismerely treated as directorySection 521 corresponds to section691 of our Code. It appears to me that, following this decision, wemust hold that the order of the District Judge dated July 12, 1910,was bad in law, and that the award must be set aside, and the caseremitted to fee District Court to be proceeded wife.
As regards costs, I agree to the order proposed by my Lord.
Case sent back.
1 {1S94) 1. L. R. IS Mad. 22.s (1S$7) I. L. R. 10 AIL 137.
a (1892) 1. 1. R. n AIL 300#