Pitche Tamby Et Al. V. Fernando Et Al.

Present: Wood Renton J. and Grenier J.   July.12,1910

PITCHE TAMBY et al. v. FERNANDO et al.

394-D. C. Puttalam, 1,990.

Arbitration- Fifteen days' notice of the award must be given to the parties-Notice to the proctors in sufficiant-Doctrine of estoppel, how far it applies to arbitration proceeding-Civil Procedure Code, ss. 676, 687.

Fifteen days' notice of the filing  award by an arbitrator should be given to the parties to the case prior to the confirmation of the award by the Court . The notice should be to the parties themselves and not to the proctors.

The provisions of the Civil Procedure Code in regard to arbitration should be rigorously and literally complied with.

THE facts appear sufficiently from the judgement.

Sampayo, K. C., for the first defendant, appellant.- The application for reference to arbitration was not signed by the parties to the case. The award is therefore invalid.

The appellant did not receive fifteen days' notice of the filing of the award prior to its confirmation by the Court, as required by section 687of the Civil Procedure Code. The decree of Court was therefore irregularly entered.

Authorities cited: Bykuntnath Chatterjee v. Nuzuroodeen 1 Indur Subbarami v. Kandada Rajamannar,2 Hira Singh v. Ganga Sahai, 3 D. C. Kurunegala 2,493, 24 Cal. 469.

Chitty, for plaintiffs, respondents.- The appellant is estopped from questioning the validity of the award, as he took part in the arbitration proceedings without protest.

The appellant had signed the application for reference, and is therefore bound by the award.

The proctor for the appellants had no objection to offer against the award being made a decree of Court; notice to the proctor was sufficient notice to the appellant.

Counsel cited the following authorities: Biswas v. Mookerjee,4 Dasia v. Pani, 5 Tyerman v. Smith,6 Aiyar v. Abdul Latif,7 Abdul Hamid v. Raizuddin,8 Joy Prokash Lall v. Sheo Golam Singh.

Sampayo, K. C., in reply.

Cur. adv. vult.

1 10 W. R. 171.                                                                        5 (1879) 4 Cal. 65.

2 26 Mad. 47.                                                                           6 (1856) 25 L. J. Q. B. 359.

3 (1883) 6 All. 322.                                                                    7 (1899) 27 Cal. 61, 64, 65.

4 (1866) 5 W. R. 130.                                                                8 (1907) 30 All. 32.
 

 9 (1884) 11 Cal. 37.

July 12, 1910. Wood Renton J.-

In my opinion this appeal must be allowed. It appears, first, that there was no special authority given by the parties or any of them to their respective proctors to consent to a reference of the case to arbitration as required by section 676 of the Civil Procedure Code, and the decisions of the Supreme Court interpreting that section (see Gonsales v. Holsinger 1): in the next place, that the application for a reference to arbitration was, in fact, not signed by all the plaintiffs-respondents to this appeal, although it was signed by the first defendant-appellant; and in the last place, that the first defendant-appellant did not receive the fifteen days' notice of the filing of the award prior to its confirmation by the Court, to which section 687 of the Civil Procedure Code entitled him. It is not necessary for the purposes of the present case to decide-and I do not decide-that there may not be circumstances in which a party to an arbitration, who has either duly authorized his proctor to apply for an order of reference, or has himself made in person and signed such an application, and has thereafter appeared before the arbitrator without objection, taken part in arbitration proceedings, and raised no objection to the award in the court of first instance, may not fairly be held to be estopped from challenging the award for the first time in the Appeal Court, on the ground that the application for an order of referenc

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