Kandy Co Operative Urban Bank V. Senanayake Et Al.,

1937   Present : Moseley J. and Fernando A.J.

KANDY CO-OPERATIVE URBAN BANK v. SENANAYAKE et al

114-D. C. Kandy, 124.

Co-operative Societies Ordinance, No. 16 of 1936-Award of arbitrator-Application for execution of award-No notice to respondent-Civil Procedure Code, s. 224.

There is no legal requirement that notice of an application for execution of an award made by an arbitrator under section 45 of the Co-operative Societies Ordinance should be issued to the party affected.

THIS case was instituted as a test case to find out whether notice X should be issued to the respondents before a writ is granted in terms of the award of an arbitrator under section 45 of the Co-operative Societies Ordinance, No. 16 of 1936. The learned District Judge held that notice must issue and the plaintiff-appellant appealed against that order.

J. E. M. Obeyesekere, C.C., for plaintiff, appellant.-Section 45 (1) (b) of the Co-operative Societies Ordinance, No. 16 of 1936, provides the method of settling disputes between the society and a member. The dispute was referred to the Registrar, who in terms of section 45 (2) referred it to an arbitrator. The Co-operative Societies Ordinance, No. 34 of 1921 is repealed, but the rules made under section 37 of that Ordinance are kept alive by section 52 (2) of the 1936 Ordinance. They are published in Gazette No. 8,179 of November 30, 1935. Application was made under rule 29 (k) to the District Court of Kandy to enforce the award of the arbitrator, which would be enforced in the same manner as a decree of the Court. Hence section 225 of the Civil Procedure Code, 1889 applies. There is no provision in that section to serve notice of application to the judgment-debtor. The only section in the Civil Procedure which provides for such notice is section 347.

A certified copy of the award is sufficient to inform the Court of the award. The Court cannot inquire whether the award is correct or not. Under section 45 (5) of the Co-operative Societies Ordinance, No. 16 of 1936, the award is final. If any adjustment is made in the award it must be stated in the application for writ as required by section 224 of the Civil Procedure Code.

The Court is merely aiding the execution of the award. The learned District Judge assumed that the principle in Mackie v. The Commissioner of Stamps [1(1935) 15 Ceylon Law Rec. 123], and in Gunawardene v. Gunasekera [ 2 (1922) 1 Times Law Rep. 90.], namely, that no order must be made affecting a person without hearing him, prevented him from issuing writ without notice on the respondent. Here the arbitrator heard the respondent and his order is final if no appeal is preferred. The Court has to perform a mere ministerial duty. He is asked to help in the collection of the money. There is no legal requirement to issue notice. The provisions laid down in section 224 of the Civil Procedure Code are sufficient to prevent any miscarriage of justice. If the material before the Court is sufficient, the writ must issue, but if it is not sufficient, it can direct further material to be placed before it.

Cur. adv. vult.

November 11, 1937. MOSELEY J.-

This is an appeal against the order of the District Judge, Kandy, upon an application by the appellant for a writ of execution upon the award of an arbitrator, to whom the matter had been referred, as provided by section 45 of Ordinance No. 16 of 1936. The procedure for enforcing an award of the arbitrator appointed by the Ordinance is laid down in rule 29 (k) of the rules published at page 1755 of the Government Gazette, dated December 6, 1935. These rules were framed under section 37 (2) (s) of Ordinance No. 34 of 1921 (now repealed) but are kept alive by Ordinance No. 16 of 1936 until replaced.

Rule 29 (k) is as follows : -

" A decision or award shall, on application to any Civil Court having jurisdiction in the area in which the Society

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