Bombay High Court
Dagdusa Tilakchand vs Bhukan Govind Shet on 15 September, 1884
Equivalent citations: (1885)ILR 9BOM82
JUDGMENT West, J.
1. It does not seem have been intended by the Legislature that any appeal should be entertained against an order made under Section 526 of the Code of Civil Procedure. The interference of the High Court by an exercise of its extraordinary jurisdiction must now be limited according to the decision in Shiva Nathuji v. Joma Kashinath I.L.R. 7 Bom. 341, and this will, in general, prevent an examination of the view taken by the Subordinate Judge of the cause or ground shown under Section 526 on which he has based his assent or refusal to file an award. As his decision is thus clothed with finality, there is the strongest reason, on the principle laid down in the beginning of the judgment just referred to, why the High Court should scrutinize with care, from the point of view of its legality, the exercise, by a Subordinate Judge, of a power of so great consequence. If, therefore, there has in any case been a disregard of the law amounting to an excess of jurisdiction, or a perversion of the purpose of the Legislature, this Court must hold itself ready to interfere where no other remedy is available.
2. In the present case it is urged that as the award gave to one of the parties costs, and the submission did not leave this question to the arbitrators, the Subordinate Judge was bound to refuse to file the award as open to an objection of a kind specified in Section 520 of the Code of Civil Procedure. We think, notwithstanding the arguments of Mr. Kirloskar, that the submission did not extend to the matter of costs. The Subordinate Judge, indeed, did not think it did; he relied on the arbitrators having as such, an implied power to deal with the costs. It is certain, however, that they could not in a private arbitration have such a power, unless it was given to them, and it must be taken that their award was open to the objection raised by the applicant Dagdasa. The Subordinate Judge was bound to yield to that objection. It appears from Chowdhri Murtaza Hossein v. Mussamut Dibi Dechunissa I.L.R. 3 I.A. 209, 213, that the Judicial Committee held that Section 327 of the Act, VIII of 1859, did not embody the earlier sections of the chapter in which it was placed. Section 526 of the present Code specifies the causes enumerated in Sections 520, 521 as those which may be urged against filing an award, but it does not say that the award may be remitted, nor without express authority can a Court send back an award to private arbitrators over whose proceedings it has no control. Its only course, then, if a reasonable ground is shown (or a conclusive cause according to Dandekar v. Dandekars I.L.R. 6 Bom. 663 is to refuse to file the award. This does no irreparable harm, since the party to be benefited can bring a suit on the award thus rejected." In. the present case, however, there has been a simple excess in the award. The party who would benefit by this (Bhukan) expresses his readiness to renounce the benefit rather than, be put to the expense of a suit, and it seems that complete justice will thus be done. When we are called on, then, by an exercise of our extraordinary jurisdiction, to set aside the Subordinate Judge's order for filing the award, we think it preferable to direct that the award stand good only for the remainder after its direction as to costs has been rejected, and that the decree be drawn in accordance with it, as it would be if it contained no direction as to costs.
3. The parties severally are to bear their own costs of this application. The costs, in the Subordinate Judge's Court of Dagdusa, are to be paid by Bhukan.