Howes A-G CJ:

On the first prayer in this summons there is no dispute between the parties consequently, the order will be in terms of prayer 1.

On prayer 2A, the opinion of the Court is sought "as to whether or not the Judgment of this Honourable Court dated 20 November 1931 and the Awards of the Umpire carries interest on the sums awarded and if so at what rate and also whether or not the interest should run from the date of the Judgment or from the date of the respective awards."

The judgment shows that the plaintiffs agreed to pay compensation to the defendants in respect of improvement done to the land in question, and, by consent, it was ordered that the amount of compensation to be paid should be referred to two arbitrators, or in case of disagreement to an umpire to be appointed by them. It was further ordered "that upon payment to the defendants of such compensation as the arbitrators or the umpire would (sic) decide the defendants do forthwith vacate and deliver up possession of the aforesaid piece of land."

The two arbitrators disagreed, and by order of Whitley J, made on 15 August 1932, Mr. Roland John Farrer was appointed "as umpire to act instead of the Arbitrators in the reference to arbitration ordered in this action with the like power to act as agreed in the submission to arbitration by the Plaintiffs and Defendants dated 29 January 1932 and that the costs of this application be costs in the cause."

The submission to arbitration of 29 January 1932 is not before me; so I assume that its terms are immaterial to the present question.

Pursuant to the judgment of 20 November 1931 the umpire on 30 October 1932 gave his award in favour of the plaintiffs for two sums, $1,603.20 and $1,008 respectively; and on 5 January 1933, by a supplemental award awarded a further sum of $1408 making a total amount of compensation of $4,019.20. None of these awards is before me, but as the total amount of the compensation is not disputed, I assume that nothing turns on their contents.

In view of the judgment of 20 November 1931, this was a reference under order of Court by consent, within s. 15(a) of the Arbitration Ordinance (Cap. 12), the whole cause or matter having been referred to the arbitrators, or, in the event of their disagreement, to the umpire for trial.

Under s. 16(2) of the above ordinance, "The report or award of any special referee or arbitrator on any such reference shall, unless set aside by the Court or a Judge, be equivalent to the judgment of a Judge."

Under the judgment of 20 November 1931 assuming that no grounds were disclosed for setting aside the award, nothing remained for the Court to do. The judgment laid down the method by which the amount of compensation was to be ascertained; and proceeded to order the defendants, on payment to them of the compensation, forthwith to vacate and deliver up possession of the land. It even dealt with the agreed costs; and no liberty to apply was reserved. As soon as the umpire had finally decided the amount of the compensation, namely, when he gave his final award on 5 January 1933, it was the duty of the plaintiffs" to pay the defendants that amount; and as soon as this was done, the defendants were bound by the judgment to vacate the land.

Mr Davies, for the plaintiffs, states that the land was in January 1933 in the occupation of sub-tenants of the defendants, so that it would have been impossible for the defendants to comply with the judgment; and it is agreed that it was not until August 1936 that the defendants succeeded in evicting the sub-tenants. What would have happened if the plaintiffs had paid the defendants, and the latter were unable to deliver up possession of the land, is a contingency with which I am not concerned. The fact remains that the plaintiffs, even now, have not paid the compensation.

Mr Davies contends that as the defendants were unable to give vacant possession, and remained in possession reaping the profits of the land unti