Vengu Ayyar and Another vs Yegyam Ayyar and Others

Raghava Rao, J.—The facts connected with this civil revision petition are these: There was a suit for partition before the District Munsif''s

Court, Ambasamudram, by one brother against others which was referred to arbitration. Defendant 1, the eldest brother, claimed that except items

1 to 5 of the plaint schedule the rest of them, items & to 25 were his self-acquisitions standing either in his own name or in the name of his wife,

defendant 2. The advocate-arbitrator agreed with defendant 1''s contentions and made an award which the Court, however, remitted on the

ground that it was not clear whether every individual sale in respect of the items in suit wag considered by the arbitrator. On remittal, the arbitrator

gave notices to both the parties. The plaintiff did not turn up with the result that the arbitrator, finding that he could do nothing, sent back the record

to the District Munsif. He thereupon took up the objections to the award which had been previously filed, and, after examining the arbitrator and

the plaintiff, found that there was no misconduct about the proceedings of the arbitrator and upheld the award. The plaintiff thereupon preferred an

appeal to the Court of the Subordinate Judge of Tinnevelly objecting to the award as one which became void under Sub-section (3) of Section 16,

Arbitration Act X [10] of 1940, on the failure of the arbitrator to reconsider the award on remittal and submit his decision within the time fixed.

The objection was upheld by the learned Subordinate Judge, so that the suit stands to be tried by the learned District Munsif as a result of the

decision of the learned Subordinate Judge.

Defendants 1 and 3 have preferred this revision petition against the order of the learned Subordinate Judge. Their contention is that the order of

the original remittal by the learned District Munsif was itself irregular, and that although they did not file an appeal against the order because of its

unappealability it could be open to them to plead the irregularity as they did in the appeal preferred by the plaintiff against the order of the learned

District Munsif eventually upholding the award. This contention is, in my opinion, well-founded. The ground on which the original remittal was

made by the learned District Munsiff is not one contemplated by any of the clauses of Sub-section (1) of Section 16. The procedure adopted by

the learned District Munsif seems more akin, in my judgment, to the procedure by way of remand in the exercise of inherent powers on the part of

an appellate Court under the Civil Procedure Code. No Court is entitled to add to the grounds of remittal set forth in the statue, and the order of

remittal, made by the learned District Mun-sif must accordingly be held to be invalid. There was and could be, no appeal against that order,

because none is provided for by the statute, and when against the order of the learned District Munsif upholding the award an appeal was taken by

the plaintiff to the Court of the Subordinate Judge it was undoubtedly competent to defendant 1 to plead the irregularity of the order of remittal and

to sustain the order of the learned District Munsif on the ground of such irregularity.

In Abdul Rahman v. Yar Muhammad, 3 ALL. 636: 1881 A. W. N. 34 to which my attention has been drawn by the learned counsel for the

petitioners an award was remitted u/s 520 of Act X [10. of 1877. The arbi-trators refused to reconsider it, and the Court thereupon proceeded

with the suit, and gave the plaintiffs a decree. The defendants appealed from such decree on the ground, amongst others, that the award had been

improperly remitted u/s 520. It was held that the question whether the award had been properly remitted u/s 520 or not could be entertained in

such appeal. Says Oldfield J. at p. 641 of the report:

I consider we are competent to entertain this appeal, as it is only where a decree has been made in the terms of the award that no appeal lies; and

in determining the appeal it ia open to us to consider whether the award did become legally void by the refusal of the arbitrators to reconsider their

award when directed to do so by the Judge; and this will depend on whether the Judge''s order remitting it was one which he could legally make.

Section 520 empowers the Court to remit an award for reconsideration upon certain grounds specified in the section, but upon no ethers; and by

Section 521 an award remitted u/s 520 becomes void on refusal of the arbitrators to reconsider it. Section 520 gives no unreserved discretion to a

Court in the matter of remitting awards for reconsideration; and the refusal of the arbitrators to reconsider the award will render it void only when

the order remitting it was one which could be properly made u/s 520. It is therefore the duty of this Court on appeal to see if the order of the Judge

was one which he could legally make u/s 520 so as to render the award void by refusal to comply with it.

Referring to Section 16, Arbitration Act, Du Pareq L. J. in delivering the judgment of the Judicial Committee in AIR 1944 76 (Privy Council) :

The section specifies three sorts of defects which may necessitate reconsideration of an award and empowers the Court to remit the defective

award in the cases specified (and in no others) to the arbitrator or umpire, and to fix the time within which the arbitrator or umpire is to submit his

decision to the Court.

I am satisfied that the learned District Mun-sif''s order remitting the award is invalid, and that it was open to him to uphold the award as he did on

return of the record by the arbitrator after going into the objections to the award in the light of the evidence adduced before him.

Mr. Venkatarama Aiyar for the respondents has drawn my attention to a case reported in Re An Arbitration between Baxters and Midland Rail

Co., (1907) 95 L. T. 20: 22 T. L. R. 616. As the head-note to the ruling puts it, what happened in that case is this: In an arbitration under the Light

Railways Act, 1896, in which under the statute the costs were in the discretion of the arbitrator, the arbitrator made and published an award in

which he said nothing as to costs. Upon an affidavit by the arbitrator that the reason why he had made no award as to costs was that he had been

under the misapprehension that the arbitration was subject to the provisions of the Lands Clauses Act, 1845, under which costs follow the event,

and that if he had known that he had power to award costs, he would have awarded them to the claimants, it was held that as the mistake made by

the arbitrator was merely one of omission, and he did not seek in any way to impeach the award that he had made, the matter ought to be remitted

to him for his consideration. The statute with which that case was concerned is different from the one with which we are concerned here. The

provision as to remittal in that statute is in Section 10(1) and is as follows:

In all cases of reference to arbitration the Court or a Judge may from time to time remit the matters referred or any of them, to the reconsideration

of the arbitrators or umpire,

and Sch. 1 of that statute further provided as follows:

The costs of the reference and award shall be in the discretion of the arbitrators or umpire, who may direct to and by whom and in what manner

those costs, or any part thereof, shall be paid.

The decision reached by the Court of appeal in England on the language of that statute and on the facts of that case affords no assistance to the

determination of the point before me.

I must accordingly uphold the contention of the petitioners; but this only means that the matter should go back to the learned Subordinate Judge

of Tinnevelly who has at the end of his order now under revision referred to the question of misconduct on the part of the arbitrator which was

apparently argued before him but refrained from arriving at any decision thereupon in the view that he took that the award became void under Sub-

section (3) of Section 16, Arbitration Act, on the failure of the arbitrator to reconsider it and submit his decision within the time fixed. I accordingly

set aside the order of the learned Subordinate Judge and direct him to take up the appeal on his file for fresh hearing and disposal in the light of the

foregoing and in accordance with law. The petitioners shall have their costs of this revision petition. The costs in the Courts below will abide the

result of the re-hearing.