1870 BOSE บ. HIRACHAND decree-holder who has caused the sale of moveable property, not belonging KANAI PRASAD to his debtor, is liable to make good the value of that property to its rightful owner, supposing that he (the decree-holder) has acted in perfect good faith. I am of opinion that this question ought to be answered in the affirmative. Whether the decree-holder has acted in good faith or not, does not seem to me to be of much importance one way or the other. It is beyond all ques tion that a decree-holder has no right to seize a property which does not belong to his debtor, and he is therefore bound to satisfy himself beyond the possibility of a mistake that the property against which he intends to execute his decree is really the property of his debtor. No mistake on this point, however innocently committed, can relieve him from the consequences of his own act, which is certainly an act of trespass so far as the rightful owner is concerned, and I see no reason in justice or equity why the latter should suffer in consequence of such a mistake. It has been said that the rightful owner may follow the property in the hands of the purchaser who purchased it at his own risk and peril. But there is no law that I am aware of which says that this is the only remedy of the rightful owner. Suppose, for instance, that the purchaser is an insolvent, or that he is beyond the reach of the Court's process, or that the rightful owner is unable to find him out. Is the rightful owner to pocket the loss, because the decree-holder has acted under a mistake? I see no reason whatever for acceding to such a contention. Much stress has been laid by the pleader for the respondent upon two deci sions of this Court: the one in Mohanund Holdar v. Akial Mehaldar (1); the other in Tamizuddin Mulla v. Nyanutulla Sirkar (2). But neither of these two cases appears to me to have any bearing upon the point now under our consideration. All that was decided in the first case was that the owner of moveable property sold in execution of a decree is at liberty to follow that property in the hands of the purchaser; but no question relating to the liability of the decree-holder seems to have been raised or discussed before the learned Judges by whom that decision was passed. In the second case, it was found, as a fact, that the judgment-debtor had a moiety or half share in the property seized by the decree-holder; so that, if anybody was to blame, it was the auction-purchaser who had taken possession of the entire property, notwithstanding that he was entitled to one-half of it only as the purchaser of the right, title, and interest of the judgment-debtor. There is one case, however, Mussamut Subjan Bibi v. Sheikh Sariatulla (3), which directly supports my view. For the above reasons, I would reverse the decision of the Judge, and restore that of the Court of first instance. The costs of this Court and of the lower Appellate Court ought to be borne by the decree-holder, respondent. (1) 9 W. R., 118. (2) Ante, p. 73. (3) 3 B. L. R., A. C., 413. Before Mr. Justice Bayley and Mr. Justice Markby. IN THE MATter of the PETITION OF SHEIKH ILAHI BAX AND OTHERS (PETITIONERS).* Appeal-Act VIII of 1859, ss. 324, 325-Award. Two, out of three arbitrators appointed in the case, submitted their award before the Moonsiff. The defendant against whom the award had been made applied to the Moonsiff to set aside the award, on the grounds of corruption and misconduct, and that the award was a nullity, inasmuch as only two out of three arbitrators had made the award. The Moonsiff overruled the objections and passed a decree in terms of the award. On appeal to the Judge, the order of the Moonsiff was set aside, on the ground that the award was illegal, as two only of the three arbitrators originally appointed had made the award, and that the evidence did not prove the plaintiff's case. On an application to the High Court to set aside the order of the Judge, held, that under section 325, Act VIII of 1859, the Judge had no jurisdiction to set aside the award when the Court of first instance had passed judgment according to the award. SHEIKH ILAHI BAX and others petitioned the High Court as follows:"That your petitioners instituted a suit in the Court of the Moonsiff of Amdohora, in the district of Beerbhoom, for recovery of a certain quantity of paddy, or damages in equivalent thereof, against Sheikh Hafu and Sheikh Sumid, defendants. "That, after some evidence had been gone into on the part of your petitioners, the matter in difference between the parties was referred to the arbitration of three individuals, named Umesh Chandra Chatterjee, Shibu Prasad Acharji, and Shastidhur Mandal, upon an agreement signed by both the parties. The material portion of the agreement is:-'Of the three arbitrators, the decision of "the majority shall be binding; if any arbitrator shall refuse or be incapable to act, then the decision come to by the other arbitrators, with the aid of any um"pire they may appoint with the concurrence of both the parties, shall be equally "binding; and if there be any difference of opinion between the two arbitrators, "then the award of the arbitrator who is supported by the umpire shall prevail "and be binding.' 666 "That the three arbitrators aforesaid repaired to the locale and examined three witnesses in the presence of both the parties. The arbitrator, Shastidhur Mandal, never again appeared to make the investigation referred to. The other arbitrators made a reference to the Court, on account of the absence of the said Shastidhur Mandal; and, under the orders of the Court, caused notices to be served on the said Shastidhur Mandal, and the parties to the suit for their appear *Rule Nisi or Motion, No. 406 of 1870, from an order of the Judge of Beerbhoom, dated the 10th March 1870. 1870 June 7. 1870 IN THE MATTER OF THE PETITION OF BAX. ance. Shastidhur did not appear; but on the appearance of the parties, they were told by the two arbitrators to produce their witnesses on a certain day. The plaintiffs appeared on the fixed day with their witnesses, but the defendants or their witnesses did not appear. Upon this the two arbitrators made a reference to the Court to know whether they should proceed with the case under the circumstances, and the Court ordered them to proceed with the case; and if the defendants did not appear, to make their award on ex parte investigation; the defendants at the same time applied to the Court to supersede the arbitration, and recall the suit, on the ground of corruption and misconduct of the arbitrators, but their application was rejected. The two arbitrators then investigated the case ex parte, and submitted an award, which was partially favorable to the plaintiffs. "That, upon the submission of this award, the defendants put in a petition to the Court, praying that the award be set aside, on the ground of corruption and misconduct of the arbitrators, and of one of the arbitrators having been absent; the Court took evidence on the part of the defendants to consider the charge of corruption and misconduct, and then finding the charge unsubstantiated, gave its judgment according to the award. "That the defendants appealed against this judgment of the Moonsiff to the Judge of the district, and the Judge held that the award was illegal, as two out of the three arbitrators originally appointed only made the award; and upon a consideration of the plaintiffs' evidence in the record, found plaintiffs' claim, as laid in the plaint, not satisfactorily proved; and he therefore reversed the judgment of the Moonsiff by a judgment dated the 10th March 1870." And the petitioners submitted "1. That the Judge had no jurisdiction to entertain the appeal, as, under section 325 of Act VIII of 1859, the judgment of the Moonsiff was final. "2. Assuming that the Judge had jurisdiction in the matter, he could not set aside the award, as it was not, in fact, made without jurisdiction, and he had no jurisdiction to decide the merits of the case upon the evidence in the record, and reverse the judgment of the Moonsiff." A rule nisi was thereupon issued calling upon the defendants to shew cause, within fifteen days of service, why the order of the Judge of Beerbhoom, dated the 10th March 1870, should not be set aside, and the judgment of the Moonsiff restored. Baboo Mohini Mohan Roy shewed cause and contended that there was no award, as only two out of the three arbitrators had attended and made the return, and therefore the Moonsiff's judgment was not a judgment according to the award within the meaning of section 325, Act VIII of 1859. He cited Sreenath Ghose v. Rajchunder Paul (1). (1) 8 W. R., 171. Baboo Debender Chandra Ghose, in support of the rule, cited Pareshnath Dey v. Nabin Chandra Dutt (1). 1870 IN THE MATTER OF THE PETITION OF (1) Before Mr. Justice Glover and Mr. Justice 325 which goes to show that those provi- SHEIKH ILAHI Mitter. PARESHNATH DEY AND ANOTHER (DEFENDANTS) v. NABIN CHANDRA DUTT (RESPONDENT).* June 28th, 1869. MITTER, J.-We are of opinion that the decision of the lower Appellate Court ought to be reversed. The Moonsiff, who tried this suit in the first instance, referred it to arbitration, under the provisions of section 315, Act VIII of 1859. The arbitrators came to the conclusion that the transaction relied upon by the plaintiff was altogether fictitious, but they nevertheless held that the plaintiff was entitled to a decree, inasmuch as the defendant had affixed his signature to the bina-putra upon which the suit was brought. The Moonsiff declined to uphold this award, upon the ground that the arbitrators were guilty of misconduct, in deciding contrary to the evidence which they themselves had accepted and believed. On appeal, the Judge has reversed the Moonsiff's decision, holding that the Moonsiff had no jurisdiction to refer to the evidence taken by the arbitrators for the purpose of determining whether they were guilty of misconduct or not. It has been contended before us that the Judge having disposed of the case according to the award of the arbitrators, the decision is final, under the provisions of section 325 of the Code. But we are clearly of opinion that this contention is not sound. The provisions of section 325 apply to that Court only, by which the case is referred to arbitration, and to no other Court. In the present case, the Court which made the reference declined to pass judgment according to the award, and the Judge, having on appeal, reversed the decision of that Court, we have every power to see whether the Judge's decision is correct or otherwise. There is nothing in the provision of section sions were intended by the Legislature to be applicable to a case like the present, and we are bound to entertain this special appeal; there being no express provision to the contrary. 66 Upon the merits, we are of opinion that the Judge's decision is wrong. The Moonsiff had every power to refer to the whole of the arbitration record, for the purpose of determining whether the arbitrators were guilty of misconduct or not. Section 320 says:-"When an award in a suit shall be "made either by the arbitrator or arbitrators, or by the umpire, it shall be submitted to "the Court under the signature of the person 66 or persons by whom it is made, together "with all the proceedings, depositions, and "exhibits in the suit." If, therefore, the arbitrators are bound to submit to the Court, all the proceedings, depositions, and exhibits in the suit, the Court to which they are submitted has every power to look into them; and if on the perusal of those proceedings, depositions, and exhibits, the Court is satisfied that the award is of such a perverse character as to raise a reasonable presumption of misconduct on the part of the arbitrators, it has every power to set it aside. Charges like partiality and misconduct, are seldom capable of direct proof; and if the proceedings of the arbitrators which contain the best available evidence of their conduct are not referred to for the purpose of determining whether that conduct might ensue in many cases. was good or bad, gross failure of justice In the present case, there can be no doubt that the award of the arbitrators is highly improper on the very face of it, and the Moonsiff was fully justified in holding them guilty of misconduct, in having decided the case contrary to all the evidence which they had themselves recorded and believed. We reverse the decision of the Judge, and restore that of the Moonsiff, with the costs of this Court and of the lower Appellate Court. *Special Appeal, No. 3217 of 1868, from a decision of the Officiating Additional Judge of Jessore, dated the 3rd September 1868. BAX. 1870 IN THE MATTER OF THE PETITION OF SHEIKH ILAHI BAX. The judgment of the Court was delivered by MARKBY, J.-I think this rule must be made absolute. There was a suit before the Moonsiff. That suit was referred to arbitration. Pending the arbitration, a dispute arose as to whether or not the arbitrators could proceed. An application was made to the Court, and the Moonsiff expressed an opinion that the arbitration could proceed. Thereupon two of the arbitrators proceeded to make the award, and the Moonsiff gave a judgment in accordance with that award. Against that decision the defendant appealed to the Judge. The Judge was of opinion that the award was invalid; and upon a consideration of the evidence on the record, he found that the plaintiff's claim was not satisfactorily proved, and therefore reversed the judgment of the Moonsiff, and dismissed the plaintiff's suit. We think that the order of the Judge was made without jurisdiction, and ought to be set aside. The function of the Court, in arbitration cases, in dealing with an award, is laid down in sections 324 and 325, Act VIII of 1859. Under section 324, an award can only be set aside on two grounds, viz., on the ground of corruption and on the ground of misconduct on the part of the arbitrators. Under section 325, the Court, if no application to set aside the award on the grounds above stated be made, or if any application be made but refused, shall proceed to pass judgment according to the award; and in every case in which judgment shall be given according to the award, the judgment shall be final. No provision is therefore made for a case in which the award is absolutely void, and whether or no it is convenient that that should be the state of the law, it is quite clear that the remedy is not, and cannot be, by an appeal to the Judge (1). Of course, we do not in the least mean to intimate any opinion whether this award was a good or a bad award, or whether it can be enforced; that question is not before us. All that we do mean to say is that, when a judgment was passed by the Moonsiff in accordance with it, that judgment was not subject to any further appeal to the Judge. We think that this opinion of ours is in accordance with the view of law taken in Sreenath Ghose v. Rajchunder Paul (2); and although it is true that it appears at first sight somewhat in conflict with the view taken in Paresnath Dey v. Nabin Chandra Dutt (3), I doubt if it is really so. This last case was one of a very peculiar character. The reference to arbitration did not take place until after a remand from this Court; and looking to the order of reference, I doubt very much whether the record ever really left the Court. I am inclined to think that only the question on remand was referred to the arbitrators. At any rate it is obvious that the course taken by the Judge in this case is erroneous. There was no judgment |