Subaneris Appu V. Appuhamy

Feb.13,1911   Present: Hutchinson C.J. and Van Langenberg A.J.

SUBANERIS APPU et al. v. APPUHAMY et al.

360-D. C. Kurunegala, 3,739.

Arbitration-Award not made within time allowed by Court-The Court has no power to delegate to the Secretary the duty of fixing the date for the return of award-Civil Procedure Code, as. 677, 683, 691.

The matters in dispute in this case were referred to arbitration, and the arbitrator was required to deliver his award on or before July 12, 1910. On that date, no award having been made, the District Judge extended the time, but fixed no period within which the award was to be delivered; it was left to the Secretary to fix the date, and he fixed the date for the 29th. The Secretary wrote to the arbitrator to send the award without delay, but did not mention any date. The award was filed before July 29.

Held, that it was not competent for the Judge to delegate to the Secretary the duty of fixing the date; that the award in this case was not valid, as it was not made within the time allowed by the Court.

THE facts are set out in the judgments.

Seneviratne, for the second defendant, appellant.

A. St. V. Jayewardene, for the respondents.

Cur. adv. vult.

February 13, 1911. Hutchinson C.J.-

This action was brought for a declaration of the plaintiffs' title to, and to recover possession of, a piece of land which the defendants had undertaken to plant; the first defendant admitted the plaintiffs' title, but claimed compensation for planting; and the second defendant claimed that the action should be dismissed, and that the plaintiffs should be ordered to pay certain damages and to convey a share of the land to the defendants.

The matters in issue were referred to arbitration, and the order of reference fixed July 12 as the date on or before which the award should be made. The arbitrator took evidence, but did not send his award to the Court by that date. The reason for the delay appears to have been that the parties had not supplied the arbitrator with the necessary stamps to put on the award; he says in his evidence that he told the Secretary of the Court that he could not send the award as the stamps were not supplied; the Secretary confirms this; and the second defendant says that he had not then (i.e., on July 12) his share of the stamps for the award.

The arbitrator made no formal application to the Court for an extension of time, nor did any of the parties do so, but the Secretary brought the matter before the Judge on July 12, when the Judge made this order in the minute book; " Extend and call," which he

and the Secretary say meant " Extend the time and call for the award." According to the usual practice in that Court the minutes are entered in the journal of the case and signed by the Judge the next day. That was not done on this occasion, because the record, including the journal, was with the arbitrator. The minute in the minute book does not fix the date to which the time was to be extended; the Secretary says that it is the practice for him to give the date (i.e., I suppose he means to fix it and insert it in the journal) according to the state of the roll: and he says that in this case the time was extended to July 29; and he produced the calendar in which the case was entered on that date. The Secretary then wrote to the arbitrator to send the documents without delay, but not mentioning any date; and the award was made and received in the Court before July 29. The second defendant raised several objections to the award. The District Court over-ruled them and entered judgment in terms of the award; and this is the second defendant's appeal.

The only point which presents any difficulty is the objection that the award was not made in time. Section 691 of the Code enacts that " no award shall be valid unless made within the period allowed by the Court." By section 677, when an order is made for reference to an arbitrator, the

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