The court emphasized that a judge cannot modify an award based on a different view from that held by the arbitrator, unless the award is imperfect or contains an obvious error that can be amended without affecting the decision.

JUDGMENT

Mookerjee, J. - The two suits out of which the present Rules have arisen being Suits Nos. 33 and 49 of 1923 of the Court of Small Causes at Krishnagar, were referred to a certain arbitrator. The arbitrator submitted his award on the 17th August, 1923, on the 27th of August, 1923, the opposite party in these Rules put in a petition challenging the validity and correctness of the award. The petition was headed as one under para. 15 of Schedule II of the Code of Civil Procedure. It dealt substantially with two sorts of grievances. One was that there was misconduct on the part of the arbitrator, inasmuch as he had refused to take relevant evidence which the opposite party was ready to adduce before him and the other was that the arbitrator had been misled into coming to certain findings upon calculations which were the result of fraudulent representations made to him on behalf of the petitioner in these Rules. The matter came up before the learned Subordinate Judge on the 31st of August, 1923. The learned Judge noted in his judgment that an objection had been taken to the award on the allegation that the arbitrator had been guilty of misconduct in not taking into evidence all that the opposite party was ready to adduce; and he himself went into the account-books, and being of opinion that a certain finding of the arbitrator with regard to the period up to which the Karbar between the parties continued was wrong on the face of the account-books, set aside that finding and made two decrees in the two suits in consonance with his own finding to the effect that the said Karbar went on down to the end of Chaitra 1326. B.S. The learned Judge seems to have held in his judgment not that the award is fit to be set aside on any of the grounds mentioned in para. 15 of the second schedule to the CPC but that the award should be modified or corrected in accordance with the provisions of para. 12 of that schedule. Para. 15 of Schedule II of the CPC lays down that no award shall be set aside except on one of the following grounds, namely, (a) corruption or misconduct of the arbitrator, (b) either party having been guilty of fraudulent concealment of any matter which he ought to have disclosed or of wilfully misleading or deceiving the arbitrator. It is not necessary for the purposes of the present cases to refer to the other part of this paragraph. The learned Subordinate Judge has recorded no finding to the effect that there was any corruption or misconduct on the part of the arbitrator nor has he found in his judgment that any party has been guilty of fraudulent concealment of any matter which he ought to have disclosed or of wilfully misleading or deceiving the arbitrator. It is clear then that the learned Judge should not have acted under the powers conferred on him by para. 15 of Schedule II of the Code of Civil Procedure. Nor did the learned Judge, in my opinion, purport to act under the provisions of that paragraph. He preferred to correct or modify the award in accordance with para. 12 of Schedule II. The provisions therein contained empower the Court to modify or correct an award (I do not quote such part of this paragraph as is not relevant for the present purposes); (b) where the award is imperfect in form or contains any obvious error which can be amended without affecting such decision; or (c) where the award contains a clerical mistake or an error arising from an accidental slip or omission. The mistake into which the arbitrator fell, according to the opinion of the learned Subordinate Judge cannot be said to be a clerical mistake or an error arising from an accidental slip or omission and, therefore, the provisions of sub-para, (c) of para. 12 of Schedule II, CPC need not further be considered. Nor was the error one which made the award either imperfect in form or which could be amended without affecting the decision of the arbitrator. It may be that the learned Subordinate Judge was perfectly justified upon the evidence b