Imagens das páginas
PDF
ePub

of the Court; and the Court shall deliver its opinion thereon; and such opinion shall be added to and form part of the award.

Court may, on application,

518. The Court may, by order, modify or correct an award, (a) Where it appears that a part of the award is upon a matter not modify or referred to arbitration, provided such part can be separated from the correct award other part, and does not affect the decision on the matter referred, or cases. (b) where the award is imperfect in form, or contains any obvious error which can be amended without affecting such decision.

in certain

519. The Court may also inake such order as it thinks fit respecting Order as to the costs of the arbitration, if any question arise respecting such costs costs of and the award contain no sufficient provision concerning them.

arbitration.

520. The Court may remit the award or any matter referred to arbitra- When award or tion to the reconsideration of the same arbitrators or umpire, upon such matter referred terms as it thinks fit,

to arbitration may be

(a) where the award has left undetermined any of the matters referred remitted. to arbitration, or where it determines any matter not referred to arbitra

tion;

(b) where the award is so indefinite as to be incapable of execution ;

(c)

where an objection to the legality of the award is apparent upon the face of it.

521. An award remitted under section 520 becomes void on the Grounds for refusal of the arbitrators or umpire to reconsider it. But no award shall setting aside be set aside, except on one of the following grounds (namely)—

(a) corruption or misconduct of the arbitrator or umpire;

(b) either party having been guilty of fraudulent concealment of any matter which he ought to have disclosed, or of wilfully misleading or deceiving the arbitrator or umpire;

(c) the award having been made after the issue of an order by the Court superseding the arbitration and restoring the suit;

and no award shall be valid unless made within the period allowed by

the Court.

award.

award.

522. If the Court sees no cause to remit the award or any of the Judgment to be matters referred to arbitration for reconsideration in manner aforesaid, according to and if no application has been made to set aside the award, or if the Court has refused such application,

the Court shall, after the time for making such application has expired, proceed to give judgment according to the award,

or, if the award has been submitted to it in the form of a special case,

according to its own opinion on such case.

Upon the judgment so given a decree shall follow, and shall be enforced Decree to in manner provided in this Code for the execution of decrees. No appeal follow. shall lie from such decree except in so far as the decree is in excess of, or not in accordance with, the award.

arbitration

523. When any persons agree in writing that any difference between Agreement them shall be referred to the arbitration of any person named in the to refer to agreement or to be appointed by any Court having jurisdiction in the may be filed matter to which the agreement relates, the parties thereto, or any of in Court. them, may apply that the agreement be filed in Court.

and registered.

The application shall be in writing and shall be numbered and registered Application to as a suit between one or more of the parties interested or claiming to be be numbered interested as plaintiff or plaintiffs, and the others or other of them as defendants or defendant, if the application have been presented by all the parties, or, if otherwise, between the applicant as plaintiff and the other parties as defendants.

cause against

On such application being made, the Court shall direct notice thereof Notice to shew to be given to all the parties to the agreement other than the applicants, filing. requiring such parties to show cause, within the time specified in the notice, why the agreement should not be filed.

If no sufficient cause be shown, the Court may cause the agreement to be filed, and shall make an order of reference thereon, and may also nominate the arbitrator when he is not named therein and the parties cannot agree as to the nomination.

Provisions

of chapter applicable to proceedings under order of reference.

Filing award in matter referred to arbitration without

intervention of Court.

Application to be numbered

and registered.

Notice to parties to arbitration.

Filing and

enforcement of such award.

Power to state

opinion.

524. The foregoing provisions of this chapter, so far as they are consistent with any agreement so filed, shall be applicable to all proceedings under an order of reference made by the Court under section 523, and to the award of arbitration and to the enforcement of the decree founded thereupon.

525. When any matter has been referred to arbitration without the intervention of a Court of Justice, and an award has been made thereon, any person interested in the award may apply to the Court of the lowest grade having jurisdiction over the matter to which the award relates, that the award be filed in Court.

The application shall be in writing and shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as

defendants.

The Court shall direct notice to be given to the parties to the arbitration other than the applicant, requiring them to show cause, within a time specified, why the award should not be filed.

526. If no ground such as is mentioned or referred to in section 520 or section 521, be shewn against the award, the Court shall order it to be filed, and such award shall then take effect as an award made under the provisions of this chapter.

CHAPTER XXXVIII.-OF PROCEEDINGS ON AGREEMENT OF

PARTIES.

527. Parties claiming to be interested in the decision of any question case for Court's of fact or law, may enter into an agreement in writing stating such question in the form of a case for the opinion of the Court and providing that, upon the finding of the Court with respect to such question,

When value of

must be stated.

(a) a sum of money fixed by the parties or to be determined by the Court, shall be paid by one of the parties to the other of them; or

(b) some property, moveable, or immoveable, specified in the agreement, shall be delivered by one of the parties to the other of them; or (c) one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement.

Every case stated under this section shall be divided into consecu tively numbered paragraphs, and shall concisely state such facts and documents as may be necessary to enable the Court to decide the question raised thereby.

528. If the agreement is for the delivery of any property, or for the subject-matter doing, or the refraining from doing any particular act, the estimated value of the property to be delivered, or to which the act specified has reference shall be stated in the agreement.

Agreement to be filed and numbered as suit.

Parties to be subject to

Court's

jurisdiction.

Hearing and disposal of case.

529. The agreement, if framed in accordance with the rules hereinbefore contained, may be filed in the Court which would have jurisdiction to entertain a suit, the amount or value of the subject-matter of which is the same as the amount or value of the subject-matter of the agreement.

The agreement, when so filed, shall be numbered and registered as a suit between one or more of the parties claiming to be interested as plaintiff or plaintiffs, and the other or others of them as defendant or defendants; and notice shall be given to all the parties to the agreement other than the party or parties by whom it was presented.

530. When the agreement has been filed, the parties to it shall be subject to the jurisdiction of the Court, and shall be bound by the statements contained therein.

531. The case shall be set down for hearing as a suit instituted under Chapter V. the provisions of which shall apply to such suit so far as the same are applicable.

If the Court is satisfied, after an examination of the partics, or after taking such evidence as it thinks fit,

(a) that the agreement was duly executed by them, and

(b) that they have a bonâ fide interest in the question stated therein, and

(c) that the same is fit to be decided,

it shall proceed to pronounce judgment thereon, in the same way as in an ordinary suit, and upon the judgment so given a decree shall follow and shall be enforced in the manner provided in this Code for the execution of decrees.

CHAPTER XLI.-OF APPEALS FROM ORIGINAL DECREES.

from all original decrees

540. Unless when otherwise expressly provided by this Code or by Appeal to lie any other law for the time being in force, an appeal shall lie from the decrees, or from any part of the decrees, of the Courts exercising original except when jurisdiction to the Courts authorized to hear appeals from the decisions expressly of those Courts.

prohibited.

541. The appeal shall be made in the form of a memorandum in Form of appeal. writing presented by the appellant, and shall be accompanied by a copy What to of the decree appealed against and (unless the Appellate Court dispenses memorandum. therewith) of the judgment on which it is founded.

Such memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed against, without any argument or narrative; and such grounds shall be numbered consecutively.

accompany

Contents of memorandum.

grounds set out.

542. The appellant shall not, without the leave of the Court, urge or Appellant be heard in support of any other ground of objection, but the Court in confined to deciding the appeal shall not be confined to the grounds set forth by the appellant:

Provided that the Court shall not rest its decision on any ground not set forth by the appellant, unless the respondent has had sufficient opportunity of contesting the case on that ground.

amendment of memorandum.

543. If the memorandum of appeal be not drawn up in the manner Rejection or hereinbefore prescribed, it may be rejected, or be returned to the appeliant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.

When the Court rejects under this section any memorandum, it shall record the reasons for such rejection.

When a memorandum of appeal is amended under this section, the Judge, or such officer as he appoints in this behalf, shall attest the amendment by his signature.

544. Where there are more plaintiffs or more defendants than one in One of several a suit, and the decree appealed against proceeds on any ground common to defendants may plaintiff's or all the plaintiffs or to all the defendants, any one of the plaintiffs or of obtain reversal the defendants may appeal against the whole decree, and thereupon the of whole decree if it proceed on Appellate Court may reverse or modify the decree in favour of all the ground common plaintiffs or defendants, as the case may be.

to all.

Of staying and executing Decrees under Appeal. 545. Execution of a decree shall not be stayed by reason only of an Execution of appeal having been preferred against the decree; but the Appellate Court stayed solely may for sufficient cause order the execution to be stayed:

decree not

by reason of appeal.

If an application be made for stay of execution of an appealable Stay of decree before the expiry of the time allowed for appealing therefrom, execution of appealable the Court which passed the decree may for sufficient cause order the decree before execution to be stayed : Provided that no order shall be made under this section unless the has expired. Court making it is satisfied

(a) that substantial loss may result to the party applying for stay of execution unless the order is made;

(b) that the application has been made without unreasonable delay;

and

(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

time for appealing

Security in case of order for execution of

against.

546. If an order is made for the execution of a decree against which an appeal is pending, the Court which passed the decree shall, on decree appealed sufficient cause being shewn by the appellant, require security to be given for the restitution of any property which may be taken in execution of the decree, or for the payment of the value of such property, and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security,

No such

security to be required from

Government or public officers.

Registry of memorandum

of appeal.

Register of
Appeal.

Appellate Court
may require
appellant to
give security
for costs.

When appellant resides out of British India.

Appellate Court to give notice

And when an order has been passed for the sale of immoveable property in execution of a decree for money, and an appeal is pending against such decree, the sale shall on the application of the judgment-debtor be stayed until the appeal is disposed of, on such terms as to giving security or otherwise as the Court which passed the decree thinks fit.

547. No such security as is mentioned in sections 545 and 546, shall be required from the Secretary of State for India in Council, or (when Government has undertaken the defence of the suit from any public officer sued in respect of an act alleged to be done by him in his official capacity.

Of Procedure in Appeal from Decrees.

548. When a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Comt shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose. Such book shall be called the Register of Appeals.

549. The Appellate Court may at its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both:

Provided that the Court shall demand such security in all cases in which the appellant is residing out of British India, and is not possessed of any sufficient immoveable property within British India independent of the property (if any) to which the appeal relates.

If such security be not furnished within such time as the Court orders, the Court shall reject the appeal.

550. When the memorandum of appeal is registered, the Appellate Court shall send notice of the appeal to the Court against whose decree decree appealed the appeal is made.

to Court whose

against.

Transmission
of papers to
Appellate Court.

Copies of exhibits in Court whose decree is appealed

against.

Power to

confirm decision

of lower Court

If the appeal be from a Court the records of which are not deposited in the Appellate Court, the Court receiving such notice shall send with all practicable despatch all material papers in the suit, or such papers as may be specially called for by the Appellate Court.

Either party may apply in writing to the Court against whose decree the appeal is made, specifying any of such papers in such Court of which he requires copies to be made; and copies of such papers shall be made at the expense of the applicant, and shall be deposited accordingly.

551. The Appellate Court may, if it thinks fit, after fixing a time for hearing the appellant or his pleader, and hearing him accordingly if he without sending appears at such time, confirm the decision of the Court against whose decree the appeal is made, without sending notice of the appeal to such Court and without serving notice on the respondent or his pleader; but in such case the confirmation shall be notified to the same Court.

it notice.

Day for hearing appeal.

552. The Appellate Court, unless where it confirms, under section 551, the decision of the lower Court, shall fix a day for hearing the appeal.

Such day shall be fixed with reference to the current business of the Court, the place of residence of the respondent, and the time necessary for the service of the notice of appeal, so as to allow the respondent sufficient time to appear and answer the appeal on such day.

of day for

553. Notice of the day so fixed shall be stuck up in the Appellate Publication and court-house, and a like notice shall be sent by the Appellate Court to the service of notice Court against whose decrce the appeal is made, and shall be served on hearing appeal. the respondent or on his pleader in the Appellate Court in the manner provided in Chapter VI. for the service on a defendant of summons to appear and answer; and all rules applicable to such summons and to proceedings with reference to the service thereof, shall apply to the service of such notice.

notice to be

Instead of sending the notice to the Court against whose decree the Appellate Court appeal is made, the Appellate Court may itself cause the notice to be may itself cause served on the respondent or his pleader under the rules above referred to. served. 554. The notice to the respondent shall declare that, if he does not Contents of appear in the Appellate Court on the day so fixed, the appeal will be notice. heard ex parte.

Procedure on Hearing.

555. On the day so fixed, or on any other day to which the hearing Right to begin. may be adjourned, the appellant shall be heard in support of the appeal. The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply.

556. If on the day so fixed, or any other day to which the hearing Dismissal of may be adjourned, the appellant does not attend in person or by his appeal for pleader, the appeal shall be dismissed for default.

appellant's default.

appeal where notice not

If the appellant attends and the respondent does not attend, the Hearing appeal appeal shall be heard ex parte in his absence. ex parte. 557. If on the day so fixed, or any other day to which the hearing Dismissal of may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the period fixed by the Court, the sum required to defray the cost of issuing the notice, the Court may order that the appeal be dismissed:

served in consequence

of appellant's failure to deposit cost.

Provided that no such order shall be passed, although the notice has Proviso. not been served upon the respondent, if on the day fixed for hearing the appeal the respondent appears in person or by a pleader, or by a duly authorized agent.

dismissed for

558. If an appeal be dismissed under section 556 or section 557, the Re-admission of appellant may apply to the Appellate Court for the re-admission of the appeal appeal; and if it be proved that he was prevented by any sufficient cause default. from attending when the appeal was called on for hearing or from depositing the sum so required, the Court may re-admit the appeal on such terms as to costs or otherwise as the Court thinks fit to impose upon him.

and direct

559. If it appear to the Court at the hearing that any person who Power to was a party to the suit in the Court against whose decree the appeal is adjourn hearing made, but who has not been made a party to the appeal, is interested persons in the result of the appeal, the Court may adjourn the hearing to a appearing future day to be fixed by the Court, and direct that such person be made to be made a respondent.

interested

respondents.

respondent

560. When an appeal is heard ex parte in the absence of the respon- Re-hearing on dent, and judgment is given against him, he may apply to the Appellate application of Court to re-hear the appeal; and if he satisfies the Court that the notice against whom was not duly served, or that he was prevented by sufficient cause from ex parte decree attending when the appeal was called on for hearing, the Court may re-hear the appeal on such terms as to costs or otherwise as the Court thinks fit to impose upon him.

made.

respondent may

561. Any respondent, though he may not have appealed against any Upon hearing part of the decree, may upon the hearing not only support the decree on object to decree any of the grounds decided against him in the Court below, but take any as if he had objection to the decree which he could have taken by way of appeal, preferred provided he has filed a notice of such objection not less than seven days appeal. before the date fixed for the hearing of the appeal.

separate

« AnteriorContinuar »