Judgement

Petition for special leave to appeal from a decree (January 30, 1924) of the High Court in its appellate jurisdiction reversing a decree of Greaves J. whereby in a suit brought by the petitioner an award dated December 6, 1922, was set aside; and from an order (July 28, 1922) of the High Court in its appellate jurisdiction affirming an order of Ghose J. whereby a suit for damages brought by the petitioner was stayed.

The facts appear from the judgment of the Judicial Committee.

On May 5, 1924, an application by the petitioner to the High Court for a certificate that the case in

Law. Rep. 52 Ind. App. 207 ( 1924- 1925)

Udoychand Pannalal V. P. E. Guzdar 23

which the decree of 1924 had been made was a fit one for appeal to His Majesty in Council was dismissed.

The learned judges (Sanderson C.J. and Walmsley J.) said that the application could succeed only if the case came within the second paragraph of s. 110 of the Code of Civil Procedure, 1908; but, in their opinion, the petitioners claim in the suit of the contract was not " property " within the meaning of that section, and consequently the decree did not " involve, directly or indirectly, some claim or question to or respecting property" to the amount of Rs. 10,000 or upwards.

1925. March 5, 6. De Gruyther K.C., and Parikh for the appellant. Under s. 110 of the Code of Civil Procedure, 1908, the petitioner is entitled as of right to appeal to the Privy Council. If he succeeds in the appeal, he will be able to proceed with his claim in respect of which he was awarded Rs.81,000. The decree therefore indirectly involves property of over Rs. 10,000. The petitioners claim under the contract was "property" within the meaning of s. 110. The Transfer of Property Act, 1882, in s. 130 treats an actionable claim as being "property." [Reference was made to Allan v. Pratt. (( 1888) 13 App, Cas. 780.)]

Sir George Lowndes K.C., and E. B. Raikes for the respondent. The word "property" as it is used throughout the Code of Civil Procedure, 1908, does not include an actionable claim. [Reference was made to s. 2, sub-s. 12, Order xx. rr. 9 to 13; Order xxi. rr. 11, 17.] The meaning of "property" in the Code cannot be ascertained by referring to the Transfer of Property Act. There were concurrent findings in respect of the stay of the petitioners suit, and no application was made in India to set aside the order of stay.

March 27. The judgment of their Lordships was delivered by

LORD DUNEDIN. The question raised by this petition is as to the meaning of s.110 of the Code of Civil Procedure, 1908. The circumstances which have given rise to it are peculiar and complicated. They arise out of a contract for sale of goods made by the respondents with the petitioner. In the contract of sale there was a provision that all disputes arising out of the sale should be settled by arbitration. A dispute did arise and cross-claims were made. The parties commenced arbitration proceedings, but disagreed as to appointment of arbitrators. An arbitrator appointed by the respondents made an ex parte award in their favour, but this was set aside by the Court. New arbitrators chosen in a manner ordered by the Court were then appointed. Another ex parte award was made and this also was set aside. Against this order setting it aside the respondents appealed. The petitioner then filed a suit claiming the damages he had sought in the arbitration. This was met by an application to stay the suit pending the disposal of the above-mentioned appeal, or otherwise until the matter was settled by arbitration. The High Court granted the stay. The petitioner appealed against that order. The appellate Court then took up this appeal and the appeal before mentioned and it dismissed both appeals, the date of the dismissal of the last mentioned being July 28, 1922. The parties then again betook themselves to arbitration. Again the arbitrators were unable to agree and ex parte awards were made, one in favour of the petitioner for