Das, J.:— (After stating the facts, as set out above, proceeded as follows):—
Now, the first question is, is there a right of appeal? The learned Vakil for the appellants has referred us to the provisions of section 104(f) and Order XLIII, rule 1(d), of the Code. Section 104(f) provides that an appeal shall lie from an order filing or refusing to file an award in an arbitration without the intervention of the Court. Here the arbitration was with the intervention of the Court. That section has clearly no application to this case. Order XLIII, rule 1(d), gives a right of appeal to a party from an order under Order IX, rule 13, rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte. Here an order has been passed under Order IX, rule 13, rejecting an application from an order to set aside a decree. Two questions, however, arise; first, was the case open to appeal? and, secondly, was the decree passed ex parte It is clear, to my mind, that an order under Order IX, rule 13, is appealable only where the decree sought to be set aside is appealable and is regarded as having been passed ex parte. In my opinion, neither of these conditions is satisfied in the present case, and it must follow that the appeal is wholly incompetent.
I will first deal with the question whether the decree passed by the Subordinate Judge in terms of the award was appealable. In my opinion, it is only necessary to refer to the provision of paragraph 16(2) of the second Schedule of the Code to hold that, where the decree is in terms of the award, no appeal lies. It is true that there is a right of appeal where the decree is in excess of or not in accordance with the award; out here the decree is in terms of the award. By the express provision of the statute, this was not a case which was open to appeal. That being so, the order passed by the Court on the application of the appellants to have the decree upon the award set aside is not appealable.
The second point is equally clear. It is asserted by the appellants that as they had no opportunity to place their case before the Court, the decree must be regarded as ex parte; but it is nothing of the sort. An ex parte decree is a decree passed by the Court in the absence of the defendants where the plaintiff has proved his case; but here the presence of the parties was not necessary to enable the Court “to pronounce judgment according to the award.” A party may indeed apply to have the award set aside on one of ??? grounds mentioned in paragraph 15(1); but where no such application is made, and where the Court does not remit the award to the reconsideration of the arbitrators, there is no option in the Court but “to pronounce judgment according to the award.” The defendants indeed presented an application for setting aside the award, but they were not present to prosecute their application, and the Court dismissed their application for default. Their application having been dismissed, the Court was bound to pronounce judgment according to the award. What happened was, not that an ex parte decree was passed against them, but that their application was dismissed for default.
For all these reasons I am of opinion that no appeal lies, and I must dismiss this appeal with costs.
Adami, J.:— I agree.