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MUDIYANSE et al. v. APPUHAMY
NLR24V458
1922 Present
: Bertram C.J. and Schneider J.
MUDIYANSE et al. v. APPUHAMY.
150-D. C. (Inty.) Kegalla, 5,800.
Arbitration-Case sent back to Court for decision of a point of law- Return to
arbitrator-No fresh motion signed by parties-Civil Procedure Code, s. 693.
An arbitrator who was duly appointed sent the case back to Court for the
decision of a point of law. The case was again by consent of parties referred to
the arbitrator. No fresh motion was signed by the parties.
Held, that the sending of the case back to Court for the decision of the point
of law did not supersede the arbitration, and that a party could not object to
the award on the ground that the case was not properly referred to the
arbitrator.
THIS
was an action by the plaintiffs for the recovery of a sum of Rs. 842.50
being damages sustained by them by reason of defendant's wrongful possession of
certain lands described in the plaint ; the defendant filed answer denying his
liability and claiming a sum of Rs. 369 in reconvention.
The parties on March 16, 1922, by a written motion referred the matters in
dispute between them to the arbitration of Mr. E. A. P. Wijeratne, Proctor.
On June 14, 1922, the arbitrator returned the record to Court with a letter
stating that the parties desired that a point of law be decided by the Court.
The arbitrator made no award.
On July 4, of consent, the matter was again referred to the arbitrator. There
was, however, no fresh motion signed by the parties or reference. The arbitrator
on September 14, 1922, filed an award.
On September 29, 1922, the plaintiffs filed their objections to the award. The
objections were inquired into on October 19, 1922, and on October 26, 1922, the
District Judge (W. J. L Rogerson, Esq.) delivered the following order
disallowing plaintiff's application and confirming the award:-
Mr. Swan for plaintiff objects that the return of the record by the arbitrator
on June 14, 1922, resulted in the cessation of his authority to arbitrate, and
the return of the record on July 4, 1922, was not in order without a fresh
reference to arbitration. The plaintiff took part in the further arbitration
proceedings, and I do not think he can now be allowed to object that they were
irregular. Nor do I think that they were irregular. The return of the record to
the arbitrator on July 4, 1922, was with the consent of parties.
The plaintiff having taken part cannot claim that the award moat be set aside
for any other ground than those enumerated in section 691, Civil Procedure Code.
I am unable to agree with plaintiffs' Proctor that the Axing of the case for
inquiry amounted to a suppression of the order for arbitration. The objection in
an; event is merely technical. Counsel for defendant quotes 3 S C C. 110, in
which the Supreme Court stated strongly its opinion on technical objections to
an award made by the party against whom the award has gone. Plaintiffs' proctor
quotes the judgment in D.C. 5,821 of this Court. In that case the original
application for arbitration was bad, and so whole proceedings were irregular. In
the present case the application was in order, and any irregularity that
occurred was due to the parties agreeing to the case being referred back to
Court for the decision of a legal point, The point was not decided, and the
irregularity, if any, was cored by the parties agreeing to the return of the
record to the arbitrator for his award in accordance with the reference. In my
opinion, however, there was no irregularity at all.
The application to set aside the award is refused.
Keuneman, for the appellants,
H. V. Perera, for the respondents.
January 18, 1922. BERTRAM C.J-
The only question that arises on this appeal is whether the fact that the Court
fixed for inquiry a matter which was brought before it by the arbitrator in an
arbitration, sending the case back to the Court for the consideration of a point
of law
