Lindsay and Kanhaiya Lal, JJ.:— We have decided, after hearing arguments of counsel in this case, to refuse this application for leave to appeal to His Majesty in Council.
The order which it is sought to take in appeal is an order which was passed by this Bench in Civil Revision No. 125 of 1923. In other words, it was an order passed under the provisions of section 115 of the Code of Civil Procedure. The matter came before this Court in connexion with an arbitration award. The award having been attacked in the trial court was accepted by the learned Judge of the court below, and we decided by our order that there was no case for interference in revision. We, therefore, allowed the order of the District Judge to remain as it was.
A preliminary objection has been raised before us and it is argued in this connexion that having regard to the language of section 109 of the Code of Civil Procedure, clause (a), the applicants have no right to apply for leave to appeal to His Majesty in Council. This argument is based on the consideration that the order which was passed by this Bench, and which is the order complained of was not an order passed “on appeal” by a High Court. We agree with the argument and we do not think that an order which has been passed by this Court in the exercise of its revisional jurisdiction is an order passed “on appeal”. We understand there is authority for the contrary view in a case reported in Harish Chandra Acharjee v. Nawab of Moorshidabad. The view there taken followed the view which was adopted by the Madras Court in Chappan v. Moidin Kutti. This latter was a case in which the matter under discussion was the right of appeal under the Letters Patent.
We are not prepared to take the view that an order passed by this Court in the exercise of its revisional jurisdiction is an order passed “on appeal”. There is a substantial difference between the powers of this Court when exercised in appeal and when exercised in revisional jurisdiction. As was very properly pointed out, the jurisdiction of this Court under section 115 is a discretional jurisdiction and the Court is not bound to interfere even if it is satisfied that an error of law has been committed by the court below. It would be otherwise in a case which came before this Court “on appeal”. We are, therefore, of opinion that this application does not lie under section 109(a). On the other hand, it is argued that if it does not lie under clause (a) it does lie under clause (c), which provides that an appeal would lie to His Majesty in Council “from any decree or order when the case, as hereinafter provided, is certified to be a fit one for appeal to His Majesty in Council.” We are of opinion that the application could be entertained under this clause if it was made to appear that the case is a fit one for appeal. It was argued before us that in the present case, as in the case of Saadatmand Khan v. Phul Kuar, the application for a certificate ought to be made to the court which passed the decree. We do not think this is so, and it may also be mentioned that in the case of Saadatmand Khan v. Phul Kuar the matter never came before the High Court at all. There was no order by the High Court in that case.
We are left then to consider whether this application ought to be granted on the ground that the case is one to be certified as a fit one for appeal to His Majesty in Council. It is argued by Mr. Piari Lal Banerji, who appears on behalf of the applicants, that a substantial question of law is raised and one, of general importance. The argument is put in this way. It is said that it would be a great hardship on litigants who engage in arbitration proceedings if they were deprived of the opportunity of showing by means of an appeal that what purported to be an award was not an award at all. We think instead (and the law is so settled in this Court) that under the present Code of Civil Procedure the policy of the law is to make all decisions in arbitration cases final. We may refer in this connexion to the Full Bench decision of this Court in Lutawan v. Lachya and to the observations of the learned Chief Justice, at page 74 of the report, where he says:—
“It seems to me that it was the clear intention of the legislature by this amendment of the Code that objections to the award on the ground of invalidity from any cause whatever should be decided by that court and by no other court.”
Similarly Mr. Justice Banerji observes at page 75 of the report:—
“It is manifest, from the provisions of the Code of Civil Procedure that the intention of the legislature is to give fit his lily to the decisions of arbitrators and to the decrees passed in accordance therewith”.
We agree respectfully with these observations on the scope of the arbitration law as it now stands and we think it is impossible to say that any hardship is caused where, as at present, the law contemplates that any objection taken in respect of the validity of an award is to be determined by the court through which the reference was made. This is clear from the provisions of schedule II, paragraph I, sub-paragraph. (1)(c) of the Code of Civil Procedure. When the award is returned by the arbitrator any party then has the opportunity of attacking the award in the court which made the reference and showing that it is invalid for various reasons which are specified in paragraph 15 “or otherwise”. It seems to us, therefore, that this paragraph contemplates the entertaining by the first court of all possible grounds which can be urged against the validity of the award, and amongst those grounds, we conceive, is included the ground which has now been raised here, namely, that what purports to be an award is, by reason of certain events which are said to have happened prior to the reference, not an award at all.
Paragraph 16, schedule II, shows clearly that the right of appeal in the case where an award has been made is of a strictly limited nature, and it was no doubt for that reason that the Full Bench held, as we have said above, that it was the policy of the legislature to give finality to the decisions of arbitrators. We, therefore, hold that no proper case has been made out which would justify our granting the certificate asked for, and we accordingly dismiss this application with costs.
Application dismissed.