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Gauri Singh v. Ramlochan Singh And Others Opposite Party.

Patna High Court
Jan 28, 1948
Smart Summary (Beta)

Structured Summary of the Opinion (Agarwala, C.J. and Meredith, J.)

Factual and Procedural Background

The plaintiff (petitioning before this Court) sought revision of an appellate order which had dismissed his suit to have an arbitral award filed in Court and a decree prepared in accordance with it.

Background facts recited in the opinion (summarised from the text):

  • The opposite party had obtained a decree against the plaintiff. The decree-holder and their associates (referred to as "gotias") applied for execution; 13 bighas of the judgment-debtor's land were sold in execution in December 1926 to the decree-holder.
  • The judgment-debtor made an application under Order XXI, Rule 90 which was dismissed on 14-10-1927. A subsequent suit brought by the judgment-debtor was dismissed on 10-2-1931.
  • According to the petitioner, there was an agreement by which the opposite party agreed to reconvey the land for an agreed sum; partial payments were made and a dispute arose about the balance. That dispute was said to have been referred to five named "punches" (arbitrators) who issued a written award on 18-3-1941 finding in favour of the petitioner and directing reconveyance on payment of a balance; the award was registered on 30-8-1941.
  • The petitioner instituted a proceeding on 22-11-1941 (headed and drawn as a plaint) asking the Court to file the award and prepare a decree according to it. A court-fee of Re. 1 was paid and the plaint stated jurisdictional value as Rs. 3,000.
  • The Munsif (trial Court) decreed the suit in terms of the award. The defendants appealed. The appellate Court held the plaintiff had failed to prove the alleged agreement or that the dispute had been referred to the punches, concluded the award was not binding, and further held the proceeding to file the award was barred by limitation; it dismissed the plaintiff's suit. The plaintiff then filed this revision application in the High Court.

Legal Issues Presented

  1. What is the true nature of the proceeding initiated by the petitioner: a suit enforceable under ordinary civil procedure, or an application under Section 14(2) of the Arbitration Act, 1940 to file an arbitral award?
  2. If the proceeding is an application under Section 14(2) of the Arbitration Act, did the trial Court have jurisdiction to entertain it where the alleged arbitration was founded upon an oral (parol) agreement and not upon a written "arbitration agreement" as defined in the Act?
  3. Whether an appeal lay from the decree passed under Section 17 (judgment and decree in terms of an award) — i.e., whether the appellate Court's hearing and dismissal was competent — and how Sections 17, 33 and 39(1)(vi) of the Arbitration Act, 1940 interact as to the right of appeal?
  4. Whether the Arbitration Act, 1940 was intended to be exhaustive so as to preclude enforcement of awards made upon oral submissions by proceedings outside the Act (i.e., by ordinary suit)?

Arguments of the Parties

Petitioner's (Appellant's) Arguments

  • The petitioner described and treated his initiating document as a plaint (a suit); he contended that the decision of the trial Court was final and no appeal lay from it, implying the appellate Court lacked jurisdiction to hear the appeal.
  • Counsel for the petitioner (Mr. L.K. Jha) argued the proceeding was in substance an application under Section 14(2) of the Arbitration Act and that the decree pronounced under Section 17 attracts the limitation on appeals in that section: no appeal lies except on specified narrow grounds (excess of or not in accordance with the award), and the appeal taken did not raise those grounds and was therefore incompetent.

Opposite Party's (Respondents') Arguments

  • The defendants filed a written statement denying the plaintiff's pleaded facts: they said there was no agreement to reconvey, no payments, no appointment of arbitrators (punches) and no arbitration or award. The award was alleged to be fraudulent, collusive and of improper registration.
  • Counsel for the defendants (Mr. G.P. Das) advanced two principal contentions:
    • That the proceeding was not under s.14 but related to s.20 (an argument the Court found inapplicable because s.20 deals with a stage prior to award and Court intervention); and
    • More substantially, that the defendants' written statement in effect was an application under s.33 challenging the existence/validity of the arbitration agreement and the award, so the order refusing that challenge would give rise to an appeal under s.39(1)(vi) as an order refusing to set aside an award. Alternatively, Mr. Das argued the Arbitration Act, 1940 is not exhaustive and does not displace enforcement of awards made on oral submission by ordinary suits, so the proceeding could be a suit outside the Act and an appeal would lie as from a decree.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Rukhanbai v. Adamji, 33 Bom. 69 Represented the contrary view (per Beaman, J.) that perhaps the 1899 Act precluded enforcement of oral submissions under the Act. The Court notes this decision had taken a contrary view but records that it was later overruled in Bombay by a Division Bench in Mathuradas (below). The decision is mentioned to contrast prior judicial positions under the 1899 Act.
Mathuradas Maganlal (Original Plaintiff) v. Maganlal Parbhudas (Original Defendant), 58 Bom. 369 Held that under the Arbitration Act, 1899, and related CPC provisions, an oral agreement to refer to arbitration was not invalid — an oral submission could produce an enforceable award and was not precluded by the 1899 Act. The Court (Meredith, J.) cites this Division Bench decision as establishing that under the 1899 Act oral submissions produced valid awards enforceable outside the special procedure; this precedent is used to explain the prior law before the 1940 Act.
Ponnamma v. Marappudi Kotamma, 56 Mad. 85 Supported the view that there is nothing in law requiring a submission to arbitration to be in writing; a parol submission is a valid submission to arbitration. Meredith, J. cites this decision as corroborative authority that under prior law (pre-1940) oral submissions were accepted as valid and enforceable by suit outside the special procedure of the 1899 Act.
Ramautar Sah v. Langat Singh, A.I.R. 1931 Pat. 92 Held that a parol submission is a legal submission to arbitration; oral references were valid. Meredith, J. refers to this High Court decision to show consistent earlier holdings that oral submissions were acceptable under the law existing before the 1940 Act.

Court's Reasoning and Analysis

The opinion contains two judges' reasoned views. The analysis below follows the text and explains the legal steps taken by each judge, sticking to the content of the opinion.

Agarwala, C.J. — Analysis (concise)

  1. Agarwala CJ begins by asking what is the nature of the proceeding: the initiating document is headed and drafted as a "plaint" (plaintiff, plaint form, verified as such). If it is a suit, the plaintiff had a right to appeal against the appellate Court's decision; accordingly, a revision application in this Court was not maintainable and must fail.
  2. He then considers the alternative: if the "plaint" is to be treated as an application to file the award, the only prescribed procedure for filing an award is Section 14(2) of the Arbitration Act, 1940, which occurs in Chapter II (Ss. 3–19) governing arbitration without Court intervention.
  3. He examines the statutory architecture: Sections permitting Court appointment of arbitrators (s.8), and the definition of "arbitration agreement" in s.2(a) (which requires writing), lead him to conclude that Chapter II applies only where there is a written arbitration agreement. The present case alleges only a parol (oral) agreement and five arbitrators; the Act contains no provision expressly covering agreements to refer to more than three arbitrators unless in writing.
  4. He rejects reliance on s.26 (which states the generality of Chapter V) as meaning the Chapter's provisions apply to arbitrations governed by the Act only, not to arbitrations outside its scope (i.e., oral submissions).
  5. Conclusion: the trial Court lacked jurisdiction to entertain an application to file the award (under the Act) in the circumstances of an alleged oral arbitration; given that, this Court should not, in revision, interfere with the appellate order which put the parties back to their pre-proceeding position. The rule is discharged (i.e., the revision fails).

Meredith, J. — Detailed Analysis

  1. Meredith J restates the facts and the pleadings in detail, noting the written statement of defendants that denied any agreement, deposit, appointment of arbitrators or award and alleged fraudulent registration.
  2. He frames the key legal procedural dispute: whether the proceeding is an application under s.14(2) (and thus attracts s.17 and the limited right of appeal set out therein), or whether it is a suit outside the Act enforcing an award arising from an oral submission where ordinary appeal rights apply.
  3. He analyses the interplay of Sections 14, 17, 33 and 39(1)(vi):
    • S.17 allows the Court to pronounce judgment and decree according to the award after the time for making an application to set aside the award has expired or after such an application has been refused, and it states no appeal lies from such a decree except on limited grounds (excess or not in accordance with the award).
    • S.33 permits a party to an arbitration agreement to apply to the Court to challenge existence/validity of an arbitration agreement or an award, and S.39(1)(vi) allows an appeal against an order refusing to set aside an award.
    • He observes a potential tension: if the Court refuses an application under s.33 and immediately proceeds under s.17 to decree the award, s.17 appears to limit appeals from the decree, while the refusal of the s.33 application itself gives rise to an appeal under s.39(1)(vi). Meredith J concludes that s.17 cannot be read to override the specific right of appeal under s.39(1)(vi); consequently, an appeal against a refusal to set aside an award is competent and can, if allowed, upset the decree made under s.17.
  4. He holds that the defendants' written statement can be treated as an application under s.33 challenging the existence/validity of the arbitration agreement and the award; thus the appeal taken was competent under s.39(1)(vi).
  5. Meredith then tackles whether the Act of 1940 altered the prior law (under the 1899 Act and CPC) which had permitted enforcement of awards arising from oral submissions by ordinary suits:
    • He surveys earlier decisions (Mathuradas, Ponnamma, Ramautar Sah) that had held oral submissions valid and enforceable under the 1899 Act and CPC.
    • He considers the drafting and preamble of the 1940 Act (an Act to "consolidate and amend the law relating to arbitration"), the use of terms such as "award" and "arbitrations" and specific provisions (S.47, S.26, S.32, S.80) that broadly apply the Act's machinery to "all arbitrations" and provide that awards shall not be set aside except on specified grounds and that suits to determine existence/effect/validity of an arbitration agreement or award are barred.
    • From these provisions Meredith J infers that the 1940 Act was intended to be exhaustive of the law and procedure relating to arbitration, and that the Act's definition of "arbitration agreement" (s.2(a)) as a written agreement excludes oral submissions from the Act's special procedures.
    • He further reasons that the Act contains no provision (in particular no provision comparable to s.14(2) applicable to oral submissions) for filing or enforcing awards made upon oral submissions; therefore if the Act is exhaustive and contains no mechanism for enforcing awards from oral submissions, the Legislature must have intended that such awards should not be enforceable under the Act — and consequently that proceedings to enforce them outside the Act would be barred by the Act's provisions (e.g., S.32).
  6. Despite this broader interpretation, Meredith J concludes that the initiating document before the trial Court must be regarded as a misconceived application under s.14(2): although the application was not strictly in the form required by s.14(2), the relief asked was "filing the award" (the language of the Act) and not the enforcement of an award by ordinary suit. On that footing, the defendants' written statement constituted an application to set aside the award under s.33, and the appellate remedy under s.39(1)(vi) was competent. Even on the alternative view (that the proceeding was a suit outside the Act), the appeal remained competent.
  7. Therefore, whether viewed as an application under the Act or as a suit outside it, the appellate Court's order dismissing the plaintiff's claim was ultimately correct. Meredith J accordingly dismissed the present revision application with costs (assessed at six gold mohurs).

Holding and Implications

Holding: Application dismissed.

Direct consequences for the parties:

  • The appellate Court's order dismissing the plaintiff's suit/proceeding (to have the award filed and a decree prepared) stands and the plaintiff's revision application to this Court is unsuccessful.
  • The High Court (through the separate reasonings) found that the trial Court could not properly entertain an application to file an award that purportedly arose from an oral (parol) arbitration agreement under the procedural machinery of the Arbitration Act, 1940 (Chapter II and s.14(2)) because the Act's definition of "arbitration agreement" requires writing and the Act's procedures address written arbitration agreements.

Broader legal implication(s) discussed by the Court:

  • Meredith, J. articulated a textual and structural interpretation of the Arbitration Act, 1940 concluding that the Act was intended to be exhaustive of arbitration law and procedure and that (subject to the Court's reasoning) the Act does not provide for filing or enforcing awards made upon oral submissions under its special procedures. He therefore treated such awards as outside the Act's machinery and observed that the Act, by its terms, restricts other forms of proceedings (see S.32 and related provisions).
  • Agarwala, C.J. reached a narrower conclusion: that only arbitrations founded on "arbitration agreements" (as defined, i.e., in writing) fall within Chapter II and s.14(2), and that the trial Court lacked jurisdiction to act on the purported oral award. He therefore declined to interfere by revision with the appellate Court's order.

Note: The two judges reached the same practical result (dismissal of the revision application), though Meredith, J. provided a fuller and more doctrinal analysis of the Arbitration Act, 1940 and its implications for awards based on oral submissions. The summary above records the reasoning contained in the opinion and does not add or infer matters not set out in the provided text.

Show all summary ...

Agarwala, C.J:— This is an application in revision by the plaintiff. The facts relating to this application are as follows. The opposite party and their gotias, having obtained a decree against the petitioner, applied for execution. Sometime later the gotias of the opposite party filed two applications stating that the decree had been completely satisfied. The judgment-petitioner also applied for satisfaction of the decree to be certified. The opposite party objected, and the executing Court held that the claim had not been satisfied. Thereupon, on 13-12-1926, 13 bighas of the judgment-debtor's land was put up for sale and sold in execution, the purchasers being the opposite party decree-holder. The judgment-debtor then made an application under O. 21, R. 90, which was dismissed on 14-10-1927. After this the judgment-debtor brought a suit against the opposite party and their gotias, which was dismissed on 10-2-1931. The case of the petitioner is that after this there was an arrangement by which the opposite party agreed to reconvey his lands to him for Rs. 900, of which Rs. 700 was paid and Rs. 200 remained outstanding. There was, however, a dispute between the parties in regard to this matter and this was referred to the arbitration of punches. The punches gave a written award on 18-3-1941. They found that there was an agreement to re-convey the land for Rs. 1000, of which Rs. 625 had been paid and Rs. 375 remained due. The award directed the opposite party to execute a deed of re-conveyance in favour of the petitioner, and the latter to pay the balance due. It was registered on 30-8-1941. The present suit was instituted by the petitioner on 22-11-1941, on a court-fee of Re. 1, the value of the subject-matter for purposes of jurisdiction being stated to be Rs. 3000. In this suit the plaintiff prayed for an order that the award be filed and a decree prepared in accordance with it. The first Court decreed the suit in teems of the award. The defendants appealed. The appellate Court held that the plaintiff had failed to prove that the defendants had agreed to re-convey the property to him, or that there was a dispute between them which had been referred to the punches. The award was held not to be binding on the defendants, and the proceeding to have it filed in Court was held to be barred by limitation. The suit was, therefore, dismissed. It is against this order that the present application has been filed in this Court.

2. It is contended that the decision of the trial Court was final and that no appeal lay from that decision. In my opinion, whether the plaintiff is entitled to maintain this application depends on the nature of the proceeding out of which it has arisen. The proceeding was described by the plaintiff himself as a suit, and was initiated by a document which he described as a plaint in which he described himself as the plaintiff. It is drawn up in the form of a plaint and verified by the plaintiff as such. If the proceeding be regarded as a suit the present application must fail because, in that case, the plaintiff had a right to appeal against the decision of the appellate Court, and, therefore, an application to revise that decree does not lie. Even if the application were allowed to be converted into an appeal it would fail on the merits by reason of the finding of the Court of appeal below that there was in fact no reference to the punches. This application must, in my opinion, also fail if the “plaint” be regarded as an application to file the award. The only procedure prescribed for filing an award is that contained in Section 14(2) of the Arbitration Act, 1940. Section 14 occurs in chap. II of the Act, which includes Ss. 3 to 19 (inclusive) and which governs an arbitration without the intervention of the Court. It also applies to an arbitration with the intervention of the Court, where there is no suit pending, by reason of S. 20(5), and to an arbitration in a suit by reason of S. 25. The present is an instance of an arbitration without the intervention of the Court, and, therefore, if the Act applies to it at all, it is chap. II which applies. Section 8 enumerates the circumstances in which an arbitrator or arbitrators may be appointed by the Court. It is not the plaintiff's case that the punches were appointed by the Court. Section 4 applies to a case where the parties to an “arbitration agreement” agree that the arbitrator or arbitrators are to be appointed by a person designated in the agreement. It is not the plaintiff's case that these punches were persons appointed by a person designated by the parties to the alleged agreement to refer the dispute to arbitration. Furthermore, the term “arbitration agreement” has been defined in S. 2(a) and does not include a parole agreement such as is alleged in the present case. Section 9 refers to an arbitration agreement which provides for a reference to two arbitrators. That also is not the plaintiff's case, for he alleges that the parties agreed to refer the alleged dispute to five punches. Section 10 applies to a case where an arbitration agreement provides for a reference to three arbitrators. There is no provision of the Act which expressly applies to an agreement to refer a dispute to more than three arbitrators. Assuming, however, that such an agreement would be governed by the Act, it is clear that chap. II of the Act will only apply when the agreement is in writing. In other words, the existence of an “arbitration agreement” i.e an agreement in writing, is the foundation of the jurisdiction of the Court to direct the arbitrators, under s. 14(2), to cause the award to be filed in Court.

3. Reference was made to s. 26 of the Act in support of the contention that the Act applies to a parole agreement to refer a dispute to arbitration. This section provides; “save as otherwise provided in the Act the provisions of this Chapter shall apply to all arbitrations.” This section occurs in chap V which is headed “General”, and, in my opinion, all that S. 26 means is that the provisions of chap. V shall apply to all arbitrations which are governed by the Act and not that they apply also to arbitrations not governed by the Act.

4. It follows that the Court of first instance had no jurisdiction to entertain an application to file the award in the present case. In that view of the matter, it is not desirable for this Court to interfere in revision with an order which has relegated the parties to the position they would have been in but for this misconceived proceeding. The result is that the rule must be discharged.

5. Meredith, J.:— This application raises a number of difficult questions with regard to the interpretation of the Arbitration Act (Act x of 1940). The petition is on behalf of one Gauri Singh. On 22-11-1941, he presented in the Court of the Munsif at Arrah a document headed as a plaint, describing himself as plaintiff, and the opposite party as defendants. In this document he recited that the plaintiff and the defendants are agnates. During the plaintiff's minority the specified property was sold in execution of a decree by the defendants, and there were several subsequent litigations ending in favour of the defendants. When the plaintiff attained the age of discretion, he asked the defendants to return the property on taking its value. The defendants agreed, and the plaintiff deposited Rs. 700, and was to deposit a further ss. 200, but subsequently differences arose between them, and ultimately the parties appointed certain named persons as arbitrators to decide the disputed points, namely, what amount the plaintiff was to pay, what amount he had already paid, etc.

6. The arbitrators gave their award on 18-3-1941, for which the plaintiff applied for compulsory registration on 17-7-1941, and the award was registered on the admission of the arbitrators on 30-8-1941. The arbitrators also gave notice to the parties.

7. When the plaintiff asked the defendants to give effect to the award, the refused to do so. Hence it became necessary for the plaintiff to apply to the Court for filing the award, and getting a decree.

8. The plaintiff accordingly asked for an order for filing the award and preparing a decree of the Court. A court-fee of Re. 1 only was paid.

9. The opposite party filed a written statement saying that the plaintiff had no cause of action to institute a suit, and asserting inter alia that the plaintiff had never asked them to take money and return the property, nor did the defendants agree to it, nor did the plaintiff deposit any money, nor did the parties appoint arbitrators to settle the points alleged by the plaintiff or for any other purpose. The punches were never appointed, nor was there any arbitration between the parties, nor was any award given. There was no arbitration agreement, nor had any been put forward. The arbitrators were self-styled arbitrators. They got the award registered fraudulently and collusively and were guilty of misconduct. The defendants accordingly prayed that the plaintiff's suit might be dismissed with costs.

10. The suit succeeded before the Munsif, who accepted the plaintiff's case and ordered that the suit be decreed in full. The defendants appealed, and the learned Subordinate Judge held that the suit was false, and allowed the appeal, first because there had been no reference to arbitration, and also, because, in his opinion, the suit was barred by limitation.

11. The point urged by Mr. L.K Jha for the petitioner is that no appeal lay, and the order of the appellate Court was, therefore, without jurisdiction. He argues that this so-called suit was really an application for filing the award under Section 14(2) of the Arbitration Act. The order of the Court was under S. 17, pronouncing judgment according to the award; and s. 17 says that upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award. The appeal which was taken was not upon either of the specified grounds, and, therefore, was incompetent. The case was not one where any appeal lay under S. 39(1), because the order was not one of any of the six kinds specified in that section.

12. Mr. G.P Das for the opposite party contended first that this was an application not under s. 14 of the, Act, but under s. 20 of the Act, and an appeal, therefore, lay under S. 39(1)(iv). This argument need not detain us. Section 20 relates to a stage prior to the award and an application to file in Court the arbitration agreement, and proceed to arbitration with the intervention of the Court. It has nothing to do with a case like the present.

13. Mr. Das further argues, however, that his clients' written statement amounted, in substance, to an application under s. 33 of the Act challenging the existence or validity of the alleged arbitration agreement and award. The order of the Court amounted to a refusal of this application, and the appeal, therefore, lay under S. 39(1)(vi), namely, as against an order refusing to set aside an award. The appeal was preferred as a miscellaneous appeal against an order.

14. Alternatively Mr. Das argues that the Act of 1940 is not exhaustive. It relates only to awards following arbitration agreements within the meaning of the Act. “Arbitration agreement” is defined in s. 2(a) as “a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not.” It was nobody's case that there was any such written agreement. The petitioner's case was that there was an oral reference to arbitration. Such an oral reference is perfectly valid, and so is the award upon it, but it does not come within the scope of the Act. The award can, therefore, be enforced by an ordinary suit under the Code of Civil Procedure. Consequently an appeal lay a an appeal from a decree. It was in error described as a miscellaneous appeal, and all that was necessary was that the appellants should pay the necessary court-fee.

15. The difficulty in dealing with these contentions lies in my opinion, in the fact that the 1940 Act contains examples of bad drafting which it would be hard to beat. Take for example S. 33, which runs:

“Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court, and the Court shall decide the question on affidavits, etc.”

16. In terms the application is limited to parties to an arbitration agreement or those deriving from them. An arbitration agreement is, therefore presupposed. Yet the Court is to decide upon the existence of such agreement. If the Court decides that there was no such agreement and that there were no parties to any such agreement, upon the terms of the section no application would lie.

17. Then under S. 30, certain grounds are specified as the sole grounds upon which an award can be set aside, but there is no provision anywhere for an application to set aside an award, unless S. 33 be held to provide for such an application, but S. 33 speaks only of challenging the existence of the validity. However, I am of opinion that an application to set aside an award can be made under S. 33, and I am further of opinion that in any view the written statement in the present cage can be considered as an application under S. 33. Upon the view I have expressed, an appeal would lie under S. 39(1)(vi) against the order of the Court, which amounted to an order refusing to set aside the award.

18. But then we run up against s. 17. Section 17 runs as follows:

“Where the Court seas do cause to remit the award or any of the matters referred to arbitration for reconsideration, or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award.”

19. It clearly contemplates that the application to set aside the award may be made in the proceedings for filing the award, because, before pronouncing a decree under S. 17, the Court is to wait until the time for making an application to set aside the award has expired, or, if such an application has been made, it is to proceed to the decree after refusing it. Note that as soon as it refuses, a right of appeal arises at once under S. 39(1)(vi). But the Court is not to await the result of the appeal, if any. So, having refused the application to set aside the award, the Court proceeds to pass a decree filing the award, and then there is no appeal from that decree except upon two limited grounds. What is to happen when, as may well be the case, the appeal against the order refusing to set aside the award is allowed? As to that the Act is silent. But it seems to me to amount to this that either s. 17 takes away with one hand what S. 39 has given with the other or the provision against appeal in S. 17 is ineffective since it is always liable to be frustrated by the appeal under s. 39(1)(vi). I am myself of opinion that the provisions of S. 17 cannot override the specific provision in S. 39(1)(vi), and consequently, if the order refusing to set aside the award is subsequently reversed in appeal, it will have the effect of upsetting the judgment and decree under S. 17 as effectively as if an appeal had been allowed against it.

20. In my judgment, if the plaintiff's application is to be regarded as one under S. 14, then, despite the provisions of S. 17, the appeal was competent as a miscellaneous appeal against an order under s. 39(1)(vi), and as the appellate order destroys the award itself, it is effective to destroy the decree filing the award.

21. I now come to the alternative contention, that this was a suit altogether outside the Act, for enforcing an award made upon an oral reference, and so the provision against appeal in S. 17 has no application. I confess that in tackling this question and trying to ascertain the intention of the framers of the Act, I have at times felt inclined to throw up my hands in despair, and exclaim “God alone knows what they did mean.” We Judges can only do our best. Its may be regarded as settled that, so far as sch. 2, Code of Civil Procedure, and the Arbitration Act of 1899 were concerned, an award based upon an oral submission or reference to arbitration was not touched, but was perfectly legal and valid, and the award could be enforced by suit, though not by the special procedure under the provisions of the Code of Civil Procedure, or the 1899 Act. That Act was regarded as not exhaustive even in the limited areas where it was applicable. The contrary view was taken by Beaman, J. in Rukhanbai v. Adamji, 33 Bom. 69,1 but that has been overruled in Bombay by a Division Bench in Mathuradas Maganlal…(Original Plaintiff), v. Maganlal Parbhudas…(Original Defendant), .*, 58 Bom. 3692 where it was definitely held that there is nothing in the Arbitration Act, 1899, or in Section 89 or in sch. 2 of the CPC, 1908, to suggest that an oral agreement to refer to arbitration is invalid. The Act of 1899 does not preclude an oral application.

22. This view was also taken by the Madras High Court in Ponnamma v. Marappudi Kotamma, 56 Mad. 85,3 and also in our own High Court in Ramautar Sah v. Langat Singh, A.I.R 1931 Pat. 92.4 The view there taken was that there is nothing in law which requires a submission of the dispute between the parties to arbitration to be in writing. A parole submission is a legal submission to arbitration.

23. Has the position been altered by the Act of 1940? In my opinion it has. The Act of 1899 was described as “An Act to amend the law relating to arbitration”, but the Act of 1940 is headed as “An Act to consolidate and amend the law relating to arbitration”, and the preamble says “whereas it is expedient to consolidate and amend the law relating to arbitration in British India”. It is an Act to consolidate the arbitration law. This suggests that it is intended to be comprehensive and exhaustive. The Legislators must have been aware that it had been settled that an award based upon an oral submission could be a valid award. It was known, there-fore, that there were two sorts of valid award, and that to use the word “award” without more would, in the circumstances, be ambiguous; yet that is just how the word has been used. It would have been quite easy to say that “award” means an award based upon an arbitration agreement as defined in the Act? that is, a written agreement; but instead of that “award” is defined as “an arbitration award.” It would also have been easy to clarify the position by providing, if that was the intention, that an award upon an oral submission would not be valid and enforceable. But nothing of the sort was done.

24. After defining an award ambiguously, the ambiguous word is used in stringent provisions to prevent any procedure with reference to awards other than that provided in the Act. Section 47 lays down that, subject to the provisions of S. 46, which are in substance a provision for an arbitration clause in an Act to be treated as an arbitration agreement and which do not concern us—and save as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder. I find myself unable to construe the words “all arbitrations” otherwise than as including both arbitrations upon a written submission and on an oral submission.

25. To the same effect is S. 26, which heads the Chapter or general provisions, and runs: “Save as otherwise provided in this Act, the provisions of this Chapter shall apply to all arbitrations.”

26. Section 80, which occurs in this General Chap. V, says that an award shall not be set aside except upon certain specified grounds, and if an award is used in the wide sense this would can any suit outside the Act to set aside an award. Section 32, however, is much more specified. Its provisions are:

“Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act.”

27. This appears to be intended to bar all proceedings outside the Act with reference to arbitrations.

28. I think I am justified in holding, in view of these provisions, that the Act was intended to be exhaustive of the law and procedure relating to arbitration. I cannot imagine that the words “arbitrations” and “awards” could have been used in such specific provisions without more, specially having regard to the definition of award, if it was intended to leave it open to the parties to an award based upon an oral submission to proceed to enforce it or set it aside by proceedings by way of suit altogether outside the Act. Let us take it then that the Act intended that there should be no such proceedings.

29. It does not follow from this, however, that it was intended to render awards based upon oral submissions illegal or invalid or unenforceable. Prima facie it might have been contemplated that awards based upon oral submissions were also to be enforceable under the procedure of the Act, though the Act has made it clear that, so far as the submission or arbitration agreement is-concerned, if it is to be enforced under the Act it must be in writing. The Act takes no account of oral agreements, and defines “arbitration agreement” to exclude them.

30. The problem whether it was intended that awards upon oral submissions could be enforced under the Act is a difficult one, but the opinion that I have formed is that was not contemplated. The only provision for enforcement of an arbitration award made without that intervention of the Court is s. 14(2). I am of opinion that this section can only be read as referring to awards based upon written arbitration agreements. The section cannot be read in isolation. Section 8 relates to the power of the Court to appoint an arbitrator or umpire, and clearly covers only cases where there is an arbitration, agreement as defined in the Act. Section 9 provides for the appointment of new arbitrations in certain circumstances by the parties, but again, relates only to arbitration upon a written agreement. Section 10 contains provisions regarding; appointment of three or more arbitrators, and here again it is made clear that it is considering only appointments on an arbitration agreement, Section 11 uses the word “reference”, but in the context it is clear enough that reference is to an arbitration agreement. Section 12 deals with the power of the Court to remove an arbitrator or an umpire.

31. Section 13 defines the powers of the arbitrators or umpire. The use of the word “the” shows that “arbitrators” is used with reference to the arbitrators referred to in the preceding sections, namely, arbitrators upon a written agreement, and this is made even more clear by the words “unless a different intention is expressed in the agreement”. Section 13 is manifestly, thinking of such arbitrators or umpire only.

32. Then comes S. 14, and begins “when the arbitrators or umpire”. It seems to me clear, having regard to the use of the word “the”, that only the same arbitrators are referred to, namely, those appointed in pursuance of an arbitration, agreement which must be in writing.

33. There is another clue in the wording of S. 14(2) itself: “The arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party, or if so directed by the Court” etc. etc. I feel confident that the reference again is only to arbitration upon a written agreement.

34. It follows that the Act contains no provisions for filing any award based upon an oral submission.

35. If then, as I have held, the Act is intended to be exhaustive, and contains no provisions for the enforcement of an award based upon an oral submission, the only possible conclusion is that the Legislature intended that such an award should not be enforceable at all, and that no such suit should lie.

36. In the light of all the above, let us next consider the nature of the proceeding with which we are concerned. No suit of the sort suggested would lie at all. No attempt was made to pay the court-fees upon such a suit, nor were any such demanded. The relief asked for was not the enforcement of the award, but filing it—the expression used in the Act. It is quite true the application was not strictly in accordance with the provisions of s. 14(2) because the award was filed with the so-called plaint, and the Court was not asked for a direction upon the arbitrators to produce it. The parties were also spoken of as plaintiff and defendants. It is also true that, if my interpretation is correct, as an application under S. 14(2) it was no more fit to succeed than as a suit. Nevertheless, I think, upon the whole it must be treated as a misconceived application under S. 14(2). Having regard to the view I have taken of the law as enacted in the Arbitration Act of 1940, the Court could not entertain the matter except as an application under S. 14(2). That being so, the written statement, as I have already held, incorporates an application to set aside the award, and the miscellaneous appeal was a competent appeal under s. 39(1)(vi).

37. I must observe, however, that in the alternative view if this be regarded as a suit outside the Act, then also the appeal was competent. The decision of the appellate Court; if my interpretation of the law is correct, was also right, though not necessarily for the reasons given in the judgment. In either view, the present application fails, and I would accordingly dismiss it with costs, assessing the hearing fee at six gold mohurs.

D.S

38. Application dismissed.