Banerjee, J.@mdashThis appeal arises out of a suit for possession of some land brought by the Plaintiff-Appellant. The matters in difference between the parties were referred to arbitration. And after the arbitrator submitted his award the Plaintiff put a verified petition impugning the award on the ground of corruption and misconduct of the arbitrator, urging that the partiality of the arbitrator was patent on the face of his proceedings, and alleging further that the arbitrator had in making the award been influenced by certain persons who were related to him and were the friends and supporters of the Defendants. The petition which is a verified one, is dated the 21st December 1901 ; but no order was made by the Court on that day. The petition was taken up on the 23rd December and the learned Munsif, to quote the words of the learned Subordinate Judge in the Appellate Court, "set aside the award on the ex parte statement of the Plaintiff without giving opportunity to the Defendants to meet the Plaintiff''s objections and without making any inquiry as to the truth of the charges made by the Plaintiff," The case was thereupon tried by the Munsif and a decree made in favour of the Plaintiff, The Defendants appealed against that decree. And the lower Appellate Court has set it aside and made a decree in accordance with the award which it found to be valid. Against that decree of the lower Appellate Court this second appeal has been preferred ; and the main ground of the appeal is that the lower Appellate Court was wrong in reversing the Munsif''s order setting aside the award, without giving the Plaintiff an opportunity of substantiating his objections to the award, an opportunity which the first Court did not think it necessary to give, it having accepted the allegations in the verified petition of the Plaintiff as sufficient.
2. At the hearing of the appeal a preliminary objection is taken that the appeal is barred by sec. 522 of the CPC read with sec. 582 ; and in support of this objection the case of Naurang Singh v. Sadapal Singh I. L. R. 10 All. 8 (1887) is relied upon ; and I am asked to hold that of the cases in this Court which support the opposite view, the case of Paresh Nath Dey v. Nabin Chandra Dutt 12 W. R. 93 (1869) is distinguishable from the present, as that case was decided with reference to the CPC of 1859, the provision in which, namely sec. 325, corresponding to sec. 522, was different; and that the case of Raghubar Doyal v. Maina Koer 12 C. L. R. 564 (1883) was not correctly decided and should be referred to a Full Bench for further consideration of the matter.
3. The argument of the learned vakil for the Respondents in support of the preliminary objection is this, that as sec. 582 of the CPC confers and imposes on the Appellate Court the same powers and duties as are conferred and imposed by the Code on a Court of Original Jurisdiction, and as the first Court was bound in a case like the present upon an application to set aside an award being refused, to give judgment and to make a decree in accordance with the award under sec. 522, the decree of the lower Appellate Court must be taken to be a decree made under the last-mentioned section ; and if that is so, as provided by that section no appeal lies from the decree so made except under certain circumstances which do not exist in the present case. It is further argued that as sec. 588 does not allow any appeal from an order rejecting an application for setting aside an award under sec. 521, the decision of the lower Appellate Court in a case like the present being virtually a decision rejecting an application objecting to the validity of an arbitration award under sec. 521, should be held not to be open to appeal.
4. The case of Naurang Singh v. Sadapal Singh I. L. R. 10 All. 8 (1887) no doubt supports the contention on behalf of the Respondents; but the other two cases above referred to are clearly opposed to that contention ; and the grounds upon which the earlier of the two cases is sought to be distinguished from the present and the decision in the later case is sought to be impugned do not appear to me to be sufficiently valid.
5. The question then comes to this, namely, whether there is any sufficient reason for my dissenting from the view taken in the above-mentioned two cases in this Court, that an appeal lies from a decree of the lower Appellate Court made in accordance with an award by an arbitrator to whom the case had been referred by the first Court and whose award the first Court had set aside.
6. I am of opinion that the question should be answered in the negative. In the first place the letter of the law does not support the preliminary objection taken. Sec. 582 is somewhat qualified in its language. It only requires an Appellate Court to exercise the same powers and to perform the same duties that are conferred and imposed by the Code on Courts of Original Jurisdiction, That does not necessarily import into the procedure in appeal the provision of sec. 522 so as to make the decree of the lower Appellate Court final, where a decree under similar circumstance made by the first Court could have been final The finality attaching to the decree of a Court is something distinct from the powers exercised and the duties performed by that Court. It is true that an order under sec 521 of the Code rejecting an application for setting aside an award is not made appealable by sec. 588; but what is appealed against in this case is not any order setting aside objections to the validity of an award, but a decree made by the Appellate Court in a suit after setting aside the decree of the first Court.
7. It was then argued that if not the letter of the law, its spirit was in favour of the preliminary objection taken ; and that it would be anomalous to hold that an Appellate Court setting aside the decision of the first Court refusing to give effect to an award, and making a decree in accordance with the award should be open to appeal when if the award had been given effect to by the first Court an appeal would have been shut out. But I do not see that there is any anomaly in that Where the first Court, that is, the Court which referred the matter in dispute to arbitration, refuses an application for setting aside, the arbitrator''s award and makes a decree in accordance with that award, the position of affairs is very different from that in a case in which the first Court allows the objection against the award and seta it aside, and the Appellate Court reverses the first Court''s decision and gives effect to the award. There is in this latter case a conflict of decision between the two Courts below upon the question whether the award is open to any valid objection. In that state of things it could not be said that the Legislature intended to attach the same finality to the decree in accordance with the award that it attaches to such a decree when there is no such conflict, unless the language of the law was clear. The language of the law not being clear on the point I am not prepared to hold that the Legislature intended to shut out an appeal in a case like the present. I must therefore accept as correct the decisions of this Court referred to above upon the point--decisions which I am bound to follow--unless I find reason to dissent from them and to refer the matter to a Full Bench. The preliminary objection is therefore overruled.
8. On the merits of the appeal, the argument in favour of the Plaintiff- Appellant is, that the lower Appellate Court is wrong in reversing the decision of the first Court setting aside the award without giving the Plaintiff an opportunity of substantiating his objections to the award.
9. The answer of the Respondents to this objection is that the Plaintiff-Appellant is not entitled to any further opportunity of substantiating his objection when he did not cite any witness before the first Court and when he did not ask the Lower Appellate Court to give him an opportunity of adducing evidence in support of his objection to the award.
10. Considering however the nature of the objections raised, considering that the Plaintiff urged those objections in a verified petition and considering also that the lower Appellate Court is of opinion that the first Court gave effect to the Plaintiff''s objections without making any enquiry as to the truth of the charges made by the Plaintiff, I think it would be a strong measure to hold that the Plaintiff is precluded from asking any opportunity of substantiating his objections against the validity of the award merely by reason of his not having named his witnesses in the petition of objections and his not having asked the lower Appellate Court to give him such an opportunity.
11. The result then is that the decree of the lower Appellate Court must be set aside and the case sent back to that Court in order that it may dispose of the appeal before it after determining whether the objections raised by the Plaintiff in his petition, dated the 21st of December 1901, against the validity of the award were true and were sufficient to make the award invalid. Both parties ought to have an opportunity of adducing evidence, and such evidence is to be taken by the lower Appellate Court. The costs of this appeal will abide the result.
