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PETITIONER: HANSKUMAR KISHANCHAND

       Vs.

RESPONDENT: THE UNION OF INDIA(and connected appeal)

DATE OF JUDGMENT: 22/08/1958

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B. SARKAR, A.K.

CITATION:  1958 AIR  947            1959 SCR 1177

ACT:        Appeal  to Supreme Court- Maintainability-Decision  of  High        Court in appeal from an award-If and when a judgment, decree        or  order-Test-Defence  of  India Act, 1939  (No.   XXXV  of        1939), ss. 19(1)(b), 19(1)(f)-Code of Civil Procedure (Act V        of 1908), ss. 109, 110.

HEADNOTE: These two appeals were preferred against the decision of the Nagpur  High  Court in an appeal under’s.  19(1)(f)  of  the Defence   of  India  Act,  1939,  modifying  an   award   of compensation made 1178 under s. 19(i)(b) of that Act in respect of certain premises requisitioned  by  the Government under 75(A) of  the  Rules framed  under  the Act.  Both the parties  applied  for  and obtained leave to appeal to the Federal Court under ss.  109 and  110  of  the Code of Civil  Procedure.   A  preliminary objection  was  taken on behalf of the Government  that  the decision of the High Court was an award and not a  judgment, decree or order within the meaning of ss. 109 and 110 of the Code and as such no appeal lay therefrom : Held, that the objection must prevail and both the appeals stand dismissed. There  could  be no doubt that an appeal to the  High  Court under s. 19(1)(f) Of the Defence of India Act from an  award made  under  s.  19(i)(b) of that  Act  was  essentially  an arbitration    proceeding and as such the decision  in  such appeal cold not be a  judgment, decree or order either under the Code- of civil procedure or under Cl. 29 Of the  Letters patent of the Nagpur High Court. Kollegal Silk Filatures Ltd. v. province, of Madyas, I.  I,. R. [1948] Mad. 490, approved. There  is a well-recognised distinction between  a  decision given  by the Court in a case which it ’hears on merits  and one given by it in a proceeding for the filing of an  award. The  former  is  a judgment, decree or order  of  the  Court appellable  under  the general law while, the latter  is  an adjudication  of a private individual with the  sanction  of the  Court  stamped on it and where it does not  exceed  the terms of the reference, it is final and not appealable.

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There can be no difference in law between an arbitaration by agreement of parties and one under a statute.  A  referrence to  arbitration  under  a statute to a court may  be  to  it either as a court or as an arbitrator.  If it is to it as  a court,   the  decision  is  a  judgment,  decree  or   order appealable  under  the  ordinary  law  unless  the   statute provides  otherwise,  while  in the latter  case  the  Court functions  as  a persona designata and its decision  is  air award  not appealable under the ordinary law but only  under the statute and to the extent provided by it. An  appeal being essentially a continuation of the  original proceedings,  what  *as  at  its  inception  an  arbitration proceeding  must  retain  its character  as  an  arbitration proceeding even where the statute provides for an appeal, Rangoon  Botatung Company v. The Collecter , Rangoon  (1912) L.R.  39  I.A. 197 .The special officer sales  the  building sites  Dassabhai  Beznoji,  (1912) I.L.R.  37  Bom  506  the special  officer  sales  the  Building  sites  v.  Dassabhai Bozanji Motiwala (1913) 17 C.W.N. 421 Manavikram  Tirumalpad v.  the Collector of the Nilagrie, (1918) I.L.R. 41 Mad  943 and  secretary of state for India in council   v.  Hindustan Co-operative Insurance society Limited ,(1931) L.R. 58 I.  A 259 relied on. 1179. National  Telephone Company Limited  v.  Postmaster-General, [1913] A. C. 546, explained.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 224 and 225 of 1954. Appeals  from the judgment dated December 31, 1947,  of  the former Nagpur High Court in Misc. (First) Appeal No. 310 of 1943, arising out of the Award dated March 31,  1943, of the Court of the Arbitrator, Addl.  Dist.  and Sessions Judge, Khandwa. Achhru  Ram  and  Naunit Lal, for appellant (In  C.  A.  No. 224/54) and respondent (In C. A. No. 225/54). C.   K. Daphtary, Solicitor-General for India, R.  Ganapathy Iyer and R. H. Dhebar, for respondent (In C. A. No.  224/54) and appellant (In C. A. No. 225/54). 1958.   August 22.  The Judgment of the Court was  delivered by VENKATARAMA AIYAR J.-Both these appeals are directed against the judgment of the High Court of Nagpur passed in an appeal under  s.  19(1)  (f) of the Defence  of  India  Act,  1939, hereinafter referred to as the Act. In exercise of the power conferred by s. 75(A) of the  Rules framed  under the Act, the Central Government  requisitioned on  February  19,  1941,  certain  properties  belonging  to Hanskumar Kishanchand, the appellant in Civil-Appeal No. 224 of  1954.   As  there  was no agreement  on  the  amount  of compensation payable to him, the Central Government referred the determination thereof to Mr. Jafry, Additional  District Judge, Khandwa, under s. 19(1) (b) of the Act.  On March 31, 1943,  Mr. Jafry pronounced his award, by which lie  awarded a. sum of Rs. 13,000 as annual rent -for, the occupation  of the  premises.  Against this award, there was an  appeal  to the High Court of Nagpur under s. 19(1) (f) of the Act,  and that  was  heard by a Bench consisting of Grille C.  J.  and Padhve  J. By their judgment dated December 31,  1947,  they enhanced  the annual rent payable to the appellant by a  sum of  Its. 3,250, and they also allowed certain other sums  as compensation for dislocation of the High School which

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150 1180 was  being run on the property.  The appellant  applied  for leave  to appeal against this judgment to the Federal  Court under  ss.  109 and I 10 of the Code of Civil  Procedure  in respect  of the amounts disallowed.  A  similar  application was  also  filed  by the Government with  reference  to  the enhancement of compensation.  On August 25, 1949, both these applications were granted, and a certificate was issued that the appeals fulfilled the requirements of ss. 109 and 110 of the  Code of Civil Procedure.  That is how the  two  appeals come  before us.  Hanskumar Kishanchand is the appellant  in Civil  Appeal  No. 224 of 1954 and the Union  of  India,  in Civil Appeal No. 225 of 1954. At  the opening of the hearing, a preliminary objection  was taken    by   the   learned   Solicitor-General    to    the maintainability  of  Civil  Appeal No. 224 of  1954  on  the ground that the judgment of the High Court passed in  appeal under  s. 19(1) (f) was an award and not a judgment,  decree or  order within the meaning of ss. 109 and 110 of the  Code of  Civil  Procedure, and that accordingly  the  appeal  was incompetent.  If this contention is right, Civil Appeal  No. 225  of  1954  preferred by the  Government  would  also  be incompetent.   That,  of  course,  does  not  preclude   the Government   from   raising   the  objection   as   to   the maintainability  of  the appeal, though the  result  of  our upholding it would entail the dismissal of Civil Appeal  No. 225 of 1954 as’ well.  We accordingly proceed to dispose  of the objection on the merits. It  will  be  convenient  at this  stage  to  refer  to  the provisions of the Act bearing upon the present, controversy. Section 19(1) provides that: " Where...... any action is taken of the nature decribed  in sub-section  (2) of section 299 of the Government  of  India Act,  1935, there shall be paid compensation, the amount  of which  shall be determined in the manner, and in  accordance with the principles, hereinafter set out........." Section  19(1) (a) provides for the amount  of  compensation being fixed by agreement, and s. 19(1) (b) enacts that : "  Where  no  such agreement can  be  reached,  the  Central Government shall appoint as arbitrator a 1181 person qualified under sub-section (3) of section 220 of the above-mentioned  Act  for appointment as a Judge of  a  High Court." Sub-section (c) of s. 19(1) provides for the appointment  by the  Central Government of a person having expert  knowledge as  to  the  nature of the property  acquired  and  for  the nomination  of an assessor by the person to be  compensated, for  the purpose of assisting the  arbitrator.   Sub-section (e)  of  s. 19(1) enacts that the arbitrator in  making  his award  shall have regard to the provisions of sub-s. (1)  of s. 23 of the Land Acquisition Act, 1894, so far as the  same can  be  made applicable.  Then comes sub-s. (f),  which  is important for the present purpose, and it is as follows: "An  appeal shall lie to the High Court against an award  of an arbitrator except in cases where the amount thereof  does not exceed an amount prescribed in this behalf by rule  made by the Central Government." Then we have sub-s. (g), which is as follows: "  Save  as provided in this section and in any  rules  made thereunder,  nothing in any law for the time being in  force shall apply to arbitrations under this section." On  these  provisions,  the  contention  on  behalf  of  the Government is that the reference under s. 19(1),(b) and  the

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appeal  under s. 19(1) (f) are all arbitration  proceedings, that the decision of the High Court in the appeal is  really an  award,  and that it is, in consequence,  not  appealable under  ss.  109 and 110 of the Code of Civil  Procedure,  as they  apply only to judgments, decrees or orders  of  Courts and not to awards.  Mr. Achbru Ram, learned counsel for  the appellant  does  not dispute that the proceedings  under  s. 19(1)  (b) are by way of arbitration, but he  contends  that when  once the matter comes before the High Court by way  of appeal  under  s. 19(1)(f), it becomes  a  civil  proceeding under  the ordinary jurisdiction of the Court, and that  any decision therein is open to appeal under ss. 109 and I 10 of the Code of Civil Procedure.  He further contends that  even apart from those provisions, the appeal was competent  under Cl. 29 of the Letters Patent, and that, 1182 the  certificate  granted by the High Court  is  under  that provision as well. Before  discussing the authorities cited on either  side  in support  of their respective contentions, it will be  useful to  state the well_established principles applicable to  the determination  of the present question.  When parties  enter into   an  agreement  to  have  their  dispute  settled   by arbitration, its effect is to take the lis out of the  hands of the ordinary Courts of the land and to entrust it to  the decision  of what has been termed a private tribunal.   Such an  agreement  is not hit by s. 28 of the  Contract  Act  as being  in restraint of legal proceedings, because s.  21  of the  Specific Relief Act expressly provides that "  save  as provided by the Arbitration Act, 1940, no contract to  refer present  or  future  differences  to  arbitration  shall  be specifically enforced ; but if any person who has made  such a contract ... and has refused to perform it sues in respect of  any  subject  which  he has  contracted  to  refer,  the existence  of such contract shall bar the suit." There is  a similar  provision  in s. 28 of the Contract  Act  which  is applicable,  where  the  Arbitration Act is  not  in  force. Where  an  arbitration  is  held in  pursuance  of  such  an agreement  and  that results in a  decision,  that  decision takes  the place of an adjudication by the ordinary  Courts, and  the rights of the parties are thereafter  regulated  by it.   It  is  true that under the law the  Courts  have  the authority  to set aside the award,-, made by arbitrators  on certain  grounds  such  as  that they  are  on  matters  not referred  to  arbitration,  or  that  the  arbitrators   had misconducted themselves, or that there are errors apparently the  face of the award.  But where the award is not open  to any such objection, the Court has to pass a decree in  terms of  the  award, and under s. 17 of the Arbitration  Act,  an appeal lies against such a decree only on the ground that it is  in  excess of, or not otherwise in accordance  with  the award.  In other words, it is the decision of the arbitrator where  it  is  not  set aside  that  operates  as  the  real adjudication  binding on the parties, and it is with a  view to its enforcement that the, Court ’is authorised to pass  a decree in terms thereof.  There is thus a sharp  distinction between a 1183 decision which is pronounced by a Court in a cause which  it hears  on  the  merits, and one which is given by  it  in  a proceeding  for  the filing of an award.  The  former  is  a judgment,  decree or order rendered in the exercise  of  its normal jurisdiction as a Civil Court, and that is appealable under  the  general law as for example, under ss.  96,  100, 104, 109 and 110 of the Code of Civil Procedure.  The latter

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is an adjudication of a private tribunal with the imprimatur of the Court stamped on it, and to the extent that the award is  within the terms of the reference, it is final  and  not appealable.   The  position  in law is  the  same  when  the reference  to  arbitration is made not  under  agreement  of parties  but under provisions of a statute.  The  result  of those  provisions again is to withdraw the dispute from  the jurisdiction of the ordinary courts and to refer it for  the decision of a private tribunal.  That decision is an  award, and  stands  on  the  same  footing  as  an  award  made  on reference,  under  agreement  of parties.  It  is  for  this reason  that s. 46 of the Arbitration Act X of  1940  enacts that: "  The  provisions  of this Act, except  subsection  (1)  of section 6 and sections 7, 12, 36 and 37 shall apply to every arbitration under any other enactment for the time being  in force, as if the arbitration were pursuant to an arbitration agreement   and  as  if  that,  other  enactment   were   an arbitration  agreement;  except  in so far as  this  Act  is inconsistent  with that, other enactment or with  any  rules made thereunder.  " Nor  does it make any difference in the legal position  that the reference under the statute is to a Court as arbitrator. In  that  case, the Court hears the matter not  as  a  Civil Court but as persona designata, and its decision will be  an award  not open to appeal under the ordinary law  applicable to  decisions of Courts.  A statute, however, might  provide for the decision of a dispute by a Court as Court and not as arbitrator, in which ease, its decision will be a decree  or order of Court in its ordinary civil jurisdiction, and  that will attract the normal procedure governing the decision  of that  Court,  and  a right of appeal  will  be  comprehended therein.  The position therefore is that if the 1184 reference  is to a Court as persona designata, its  decision will  not  be open to appeal except to the extent  that  the statute  so provides; but that if, on the other hand, it  is to  a Court as Court, its decision will be appealable  under the  general law, unless there is something in the  statute, which  abridges  or takes away that incident.  It may  be  a question   whether  the  reference  to  a  Court   under   a particular  statute  is  to  it as a  Court  or  as  persona designata ; but when once it is determined that it is to  it as  persona  designata, there call be no question  that  its decision is not open to appeal under the ordinary law. We  shall  now  consider  the  authorities  hearing  on  the question.   On  behalf of the Government, the  decisions  in Rangoon Botatoung Company v. The Collector, Rangoon (1), The Special  Officer,  Salsette  Building  Sites  v.   Dossabhai Bezonji (2), The Special Officer, Salsette Building Sites v. Dassabhai Bozanji Moti. wala (3), Manavikraman Tirumalpad v. The Collector of the Nilgris (4) and Secretary of State  for India  in  Council  v.  Hindusthan  Co-operative   Insurance Society  Limited  (5)  were  relied  on  as  supporting  the contention  that  the present appeals are  incompetent.   In Rangoon Botatoung Company v. The Collector, Rangoon (1), the facts were that certain properties had been acquired  tinder the  Land  Aequistion  Act of 1894, and  the  Collector  had determined the amount of compensation payable to the quondam owners.    On   their  objection  as  to  the   quantum   of compensation, the matter was referred to the decision of the Chief  Court  of  Burina.  It was heard by a  Bench  of  two Judges,  who  determined  that a sum of  Rs.  13,25,720  was payable  as compensation.  Dissatisfied with this  decision, the  owners preferred an appeal to the Privy  Council  under

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the  provisions  of tile Code of Civil  Procedure.   A  pre- limilary  objection was taken to the maintainability of  the appeal on the ground that the decision sought to be appealed against  was  not a judgment of Court but an award  and  was therefore   not  appealable.   In  giving  effect  to   this objection, the Board observed: " Their Lordships cannot accept the argument or (1) (1912)  39 I.A. 197.    (2) (1912) I.L.R. 37 Bom. 506. (3) (1913) 17 C.W.N. 421.   (4) (1918) I.L.R. 41 Mad. 943. (5) (193I) L.R. 58 I.A. 259. 1185 suggestion  that when once the claimant is admitted  to  the High  Court  he has all the rights of  an  ordinary  suitor, including the right to carry an award made in an arbitration as to the value of land taken for public purposes up to this Board  as if it were a decree of the High Court made in  the course of its ordinary jurisdiction.  " Shortly  after  this judgment was pronounced,  the  question arose  for  determination in The special  officer,  Salsette Building Sites v. Dossabhai Bezonji (1), whether a  decision given  by the High Court in appeal under s. 54 of  the  Land Acquisition Act was a judgment within Cl. 39 of the  Letters Patent,  so  as  to enable a party to appeal  to  the  Privy Council  under  that  provision.  The  applicant  sought  to distinguish the decision in Rangoon Botatoung Company v. The Collector,  Rangoon  (2)  on  the  ground  that  there,  the decision sought to be appealed against was that of the Chief Court of Burma, and the question of maintainability fell  to be  decided  on the terms of the, Code of  Civil  Procedure, whereas in the instant case, the party had a right to appeal to the Privy Council under Cl. 39 of the Letters Patent.  In rejecting  this contention, the High Court referred  to  the observations in Rangoon Botatoung Company’s Case (2) already quoted, and observed "  This passage shows that it is a mistake to  suppose  that the award made in such a case by the High Court is a  decree within   the  ordinary  jurisdiction  to  which  the   Civil Procedure  ("’ode  refers; and it seems to me  it  would  be equally  erroneous  to  regard  such an  award  as  a  final judgment  or  order within the meaning of clause 39  of  the Letters Patent.  " Leave  to  appeal  to  the  Privy  Council  was  accordingly refused.  There was an application to the Privy Council  for special  leave in this matter, but that was  also  rejected, and  the report of the proceedings before the Privy  Council in The special Officer, salsette Building Sites v. Dassabhai Basanji Motiwala (3)shows that the interpretation put by the Bombay High Court in The Special officer, salsette  Building sites v. Dossabhai Bezonji (1) was accepted as correct. In Manavikraman Tirumalpad v. The Collector of the (1) (1912) I.L.R. 37 130m 506. (2) (1912) L.R. 39 I.A. 197. (3) (1913) 17 C.W.N......42I. 1186  Niligris(1) the question was whether a judgment of the High Court passed in an appeal under the Land Acquisition Act was a  judgment  within  the meaning of Cl. 15  of  the  Letters Patent so as to entitle a party to file a further appeal  to the  High Court under that provision, and it was held, on  a consideration of the authorities above referred to, that  it was  not.   Secretary  of  State for  India  in  Council  v. Hindusthan  Cooperative Insurance Society Limited (2)  is  a decision  under the Calcutta Improvement Act,  1911.   Under that  Act, there is a tribunal constituted  for  determining the  amount of compensation payable on acquisition of  land,

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and  under the Calcutta Improvement (Appeals) Act, 1911,  an appeal is provided in certain cases from the decision of the tribunal  to the Calcutta High Court.  The point that  arose for determination was whether the decision given by the High Court  in  appeal under this provision was open  to  further appeal  to  the  Privy Council.  In  answering  it  ill  the negative,  the  Privy Council observed that in view  of  the decision  in  Rangoon Botatoung Company  v.  The  Collector, Rangoon  (3), there could be no right of appeal against  the decision  of  the  High Court.  It further  held  that  this conclusion  was  not affected by the amendment of  the  Land Acquisition Act, 1921, providing for an appeal to the  Privy Council  against the decision of the High Court under s.  54 of  that  Act, as that amendment could not be held  to  have been incorporated by reference in the Calcutta Improve- ment Act, 1911. The  law as laid down in the above authorities may  thus  be summed  up: It is not every decision given by a  Court  that could  be said to be a judgment, decree or order within  the provisions  of  the Code of Civil Procedure or  the  Letters Patent.  Whether it is so or not will depend on whether tile proceeding  in which it was given came before tile Court  in its  normal civil jurisdiction, or de hors it as  a  persona designata.   Where the dispute is referred to the Court  for determination by way of arbitration as in Rangoon  Botatoung Company v. The Collector, Rangoon (3), or where it comes (1) (1918) I.L.R 41 Mad. 943.  (2) (1931) L.R. 58 I.A. 259. (3) (1912) L.R. 39 I.A. 197. 1187 by  way of appeal against what is statedly an award  as  in’ The  Special Officer, Salsette Building Sites  v.  Dossabhai Bezonji (1), Manavikraman Tirumalpad v. The Collector of the Nilgris  (2) and Secretary of State for India in Council  v. Hindusthan  Co-operative Insurance Society Limited (3)  then the decision is not a judgment, decree or order under either the Code of Civil Procedure or the Letters Patent. Now,  Mr.  Achhru Ram contests this  last  proposition,  and relies  strongly  on  the  decision  in  National  Telephone Company Limited v. Postmaster-General (4), as supporting his position.  There, the question arose on the construction  of certain   provisions   of   the   Telegraph    (Arbitration) Act,   .1909.  Section  I  thereof  enacted   that   certain differences  between  the Postmaster-General and  any  other person  should,  if  the parties  agreed,  be  referred  for decision  to  the Railway and Canal  Commission  constituted under an Act of 1888 ; and s. 2 provided that all  enquiries under the reference should be conducted by the Commission in accordance  with the Act of 1888.  Pursuant to  a  reference under these provisions, the Railway and Canal Commission had determined  certain disputes, and the question  was  whether its decision was open to appeal.  Under the Act of 1888, the Commission  was constituted a Court of record and an  appeal lay  against its decision to the Court of Appeal  except  on questions  of  fact and locus standi.  It was  held  by  the House  of Lords that as under the Act of 1888 the  reference to the Commission was to it as a Court, the reference  under the Telegraph (Arbitration) Act, 1909, to that tribunal must also  be  held to be to it as a Court and not as a  body  of arbitrators,   and  an  appeal  against  its  decision   was therefore  competent.   The  position  was  thus  stated  by Viscount Haldane L. C.: " When a question is stated to be referred to an established Court  without  more, it, iii my opinion, imports  that  the ordinary  incidents  of the procedure of that Court  are  to attach,  and also that any general right of appeal from  its

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decision likewise attaches." (1)  (1912) I.L.R. 37 Bom. 5o6. (2)  (1918) I.L.R. 41 Mad. 943. (3)  (1931) L.R. 58 I.A. 259. (4)  [1913] A.C. 546. 151 1188 It  may  be  noted  that  it was  the  use  of  the  word  " arbitration  "  in the title to the Act that  furnished  the ground  for the contention that the proceedings  before  the Commission  were  of the nature of  arbitration.   But  that description, however, could not alter the true character  of the  reference  under  the Act, which was in  terms  to  the Commission  as  a Court of record.  In fact,  there  was  no element of arbitration in the -proceedings.  It is true that under that Act there could be a reference only by  agreement of parties.  That, however, could not make any difference in the character of the proceedings before the Commission, as a statute can provide for the jurisdiction of the Court  being invoked  as  a  Court on the agreement of  parties,  as  for example,  on  a case stated under Order 36 of  the  Code  of Civil   Procedure.   There  is  thus  nothing  in   National Telephone  Company Limited v. Postmaster-General (1),  which can be said to conflict with the law as laid down in Rangoon Botatoung  Company v. The Collector, Rangoon. (2) that  when the  reference is to a Court as arbitrator, its decision  is not open to appeal. The distinction between the two classes of cases, where  the reference is to court as court and where the reference is to it as arbitrator, was again pointed out by the Privy Council in Secretary of State for India v. Chelikani  Rama Rao  (3). There,   the  question  arose  with  reference  to   certain provisions  of  the  Madras  Forest  Act,  1882.   That  Act provides  that  claims  to lands which  are.  sought  to  be declared  reserved  forests  by the  Government  are  to  be enquired  into  by  the Forest Settlement  Officer,  and  an appeal  is  provided against his decision  to  the  District Court.   The point for decision was whether the decision  of the  District  Court was open to further  appeal  under  the provisions  of the Code of Civil Procedure.  The  contention was  that the reference to the District Court under the  Act was  to  it  not  as a Court but  as  arbitrator,  and  that therefore  its  decision  was  not open  to  appeal  on  the -principle laid down in Rangoon Botatoung Company’s Case  In repelling this contention, (1) [1913] A.C. 546.        (2) (1912) L.R. 39 I.A. 197. (3)  (1916) L.R. 43 I.A, 192. 1189 Lord  Shaw observed that under the Land Acquisition Act  the proceedings  were  ,from  beginning to  end  ostensibly  and actually   arbitration’   proceedings  ",   but   that   the proceedings under the Forest Act were essentially  different in character.  " The claim was " he said, " the assertion of a legal right to possession of and property in land; and  if the  ordinary Courts of the country are seized of a  dispute of  that character, it would require, in the opinion of  the Board,  a  specific  limitation  to  exclude  the   ordinary incidents of litigation" The  principles being thus well-settled, we have to  see  in the  present case whether an appeal to the High Court  under s.  19(1)(f)  of the Act comes before it as a  Court  or  as arbitrator.  Under s. 19(1)(b), the reference is  admittedly to  an arbitrator.  He need not even be a Judge of a  Court. It  is  sufficient that he is qualified to  be  appointed  a Judge of the High Court.  And under the law, no appeal would

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have lain to the High Court against the decision of such  an arbitrator.   Thus,  the provision for appeal  to  the  High Court under s. 19(1)(f) can only be construed as a reference to  it as an authority designated and not as a  Court.   The fact  that,  in  the present case, the reference  was  to  a District  Judge would not affect the position.  Then  again, the  decision of the arbitrator appointed under s.  19(1)(b) is  expressly referred to in s. 19(1)(f) as an award.   Now, an  appeal  is essentially a continuation  of  the  original proceedings,  and if the proceedings under s.  19(1)(b)  are arbitration  proceedings, it is difficult to see  how  their character  can  suffer a change, when they  are  brought  up before an appellate tribunal.  The decisions in The  Special Officer,  Salsette Building Sites v. Dossabhai Bezonji  (1), The  Special Officer, Salsette Building Sites  v.  Dassabhai Basanji   Motiwala  (2),  Manavikraman  Tirumalpad  v.   The Collector  of  the Nilgris (3) and Secretary  of  State  for India  in  Council  v.  Hindusthan  Co-operative   Insurance Society  Limited (4) proceed all on the view that an  appeal against an award continues to be part of, and a (1)  (1912) I.L.R. 37 Bom. 506. (2)  (1913) 17 C.W.N. 421. (3)  (1918) I.L.R. 41 Mad. 943. (5)  (1931) L.R. 58 I.A. 259. 1190 further  stage of the original arbitration  proceedings.  ln our  view,  a  proceeding  which  is  at  the  inception  an arbitration   proceeding  must  retain  its  character   :as arbitration, even when it is taken up in appeal, where  that is provided by the statute. The  question whether an appeal under s. 19(1)(f) is of  the nature of arbitration proceedings, and whether the  decision given therein is an award came up directly for consideration in  Kollegal Silk Filatures Ltd. v. Province of  Madras  (1) before  a  Bench  of the Madras  High  Court  consisting  of Patanjali  Sastri  and Chandrasekhara Aiyar JJ. and  it  was held  by them that the word "arbitration" in s. 19(1)(g)  of the  Act  covered  the entire proceedings  from  their  com- mencement before the arbitrator to their termination in  the High Court on appeal where an appeal had been preferred, and the  High  Court in hearing and deciding  the  appeal  acted essentially as- an arbitration tribunal.  We agree with this decision   that  the  appeal  under  s.  19(1)  (f)  is   an arbitration  proceeding.   We must therefore hold  that  the decision  of  the  High  Court  in  the  appeal  under  that provision  is not a judgment, decree or order either  within ss. 109 and I 10 of the Code of Civil Procedure or cl. 29 of the   Letters  Patent  of  the  Nagpur  High  Court,   which corresponds to cl. 39 of the Letters Patent of the Calcutta, Madras  and  Bombay High Courts, and  that,  therefore,  the present appeals are incompetent. Mr. Achbru Ram finally contended that even if no appeal  lay under ss. 109 and 110 of the Code of Civil Procedure or  cl. 29  of the Letters Patent, it was, nevertheless  within  the competence of this Court to grant leave to appeal, and  that this was a fit case for the grant of such leave.  He  argued that  the  Privy  Council had the power to  grant  leave  to appeal against the decision of the Nagpur High Court in  the appeal  under  s. 19(1) (f), that under s. 3(a)(ii)  of  the Federal Court (En. largement of Jurisdiction) Act I of  1948 that  power  became vested in the Federal Court,  and  under Art.  135  it has devolved on this Court, and  that  in  the exercise  of  that  power we should grant  leave  to  appeal against (1)  I.L.R. [1948] Mad. 490.

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1191 the decision now under challenge. it is sufficient answer to this  contention that the Federal Court had power  under  s. 3(a)  (ii) to grant leave only when the proposed appeal  was against  a  judgment, and that, under the definition  in  s. 2(b), meant a judgment, decree or order of a High Court in a civil case; and that on our conclusion that the decision  in the  appeal under s. 19(1) (f) is not a judgment, decree  or order but an award, no order could have been passed granting special leave under s. 3(a) (ii). In  the result, we dismiss both the appeals as  incompetent. The parties will bear their own costs in this Court. Appeals dismissed.