Muhammad Newaz vs. Alam Khan, I. L. R., 18 Cal., 414, but if both parties consent to have the enforcement of the award tried on application like a regular suit, neither of them can afterwards object to the jurisdiction of the Court-Hurronath vs. Nistarini, I. L. R., 10 Cal., 74.

Stamp. The stamp required is not that on a suit but on application-Palut Bhagut vs. Monohur, 13 C. L. R., 171; Khoda Buksh vs. Mowla, 14 W. R., 255; Bijadhur vs. Monohur, I. L. R., 10 Cal., 11.

Filing and enforce

ment of such award.

526. If no ground such as is mentioned or referred to in section 520 or section 521, be shown 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.

Act VIII of 1859, section 327. This section applies to H. C.

Section 327 of Act VIII was not incorporated with the earlier sections of Chapter VI, and awards were not filed if there was any substantial objection which appeared on the face of the award, or was founded on the misconduct of the arbitrators, or on any miscarriage in the course of the proceeding, or any other ground fatal to an award according to English Law-Chowdhri Murtaza vs. Bechunnissa, 3 Ind. App., 213. And under the present section, the Court cannot file an award if it be necessary to try any question as to whether the Reference has been really made or the award is a sham, or any objection not falling within sections 520, 521-Samal Nathu vs. Jaishankar, I. L. R., 9 Bom., 254; Jones vs. Ledgard, I. L. R., 8 Alla., 340; Hurronath vs. Nistarini, I. L. R., 10 Cal., 74. But see Bindessuri vs. Jankee, I. L. R., 16 Cal., 482.

The Court has no power to remit an award to private arbitrators over whose proceedings it has no control; but must ordinarly file the award, unless it acts on one or other of the grounds referred to in sections 520, 521–Dagdusa vs. Bhukan, I. L. R., 9 Bom., 82.

A person cannot revoke a submission to arbitration without just and sufficient canse -Nagaswamy vs. Rungasamy, 8 Mad., 46. Mere revocation does not bar the filing of an award-Santaiya vs. Ramaraya, 7 Mad., 257; but if the agreement to submit does not define the powers of the arbitrators-Bindessuri vs. Jankee, I. L. R., 16 Cal., 482; or the whole award is not tendered-Raj Chunder vs. Brojendro Coomar, 21 W. R., 182; Gopi vs. Mahanandi, I. L. R., 12 Mad., 331; or the arbitrators have been guilty of misconduct -Noder Ali vs. Majoo, 21 W. R., 377; or have gone beyond the deed of submission-Dagdusa vs. Bhukan, I. L. R., 9 Bom., 82, the award should not be filed. If the award is filed, the Court should then proceed to pass judgement according to the award and draw up a decree-Himutoollah vs. Heerun, 13 W. R., 62; if the award be rejected it is not null and void and the applicant can sue to enforce it in a regular suit-Kota Seetamma vs. Kolepurla, 8 Mad., 81; Nursing Gariwan vs. Puttboo, 20 W. R., 420.

Representation.-Proceedings under this section are of the nature of a suit, and a minor must be perfectly represented-Vasudeb vs. Narayan, 9 Bom., 289. Succession: Certificate Act.-See Ramchundra vs. Bapee, I. L. R., 16 Bom., 240. Limitation.-An application to pass judgment in terms of the award is not an application within the Limitation Act-Ishwardas vs. Dosibai, I. L. R., 7 Bom., 316.

Appeal does not Lie.-No appeal lies from an order refusing to file an awardRam Chowdhry vs. Denobundhoo, 9 C. L. R., 847; I. L. R., 7 Cal., 490; Chintamun Singh, vs. Uma Kunwar, B. L. R., F. B. R., 505; Bhola vs. Gobind Deoyal, I. L. R., 6 Alla., 186, otherwise if made in the course of a suit-Howard vs. Wilson, I. L. R., 4 Cal., 231 [not followed-Ambica Dasia vs. Nadyar, I. L. R., 11 Cal., 172] even though the order awards costs-Preonath Chowdhry vs. Ramdhun, 11 W. R., 104; but see Raj Chunder Roy vs. Brojendro Coomar, 21 W. R., 182; and no appeal is given by the Code from an order directing an award to be filed--Bindessuri vs. Jankee, I. L. R., 16 Cal., 482; Ramadhin vs. Mahesh, I. L. R., 2 Alla., 441; Bijadhur vs. Monohur, I. L. R., 10 Cal., 11; the party should, however, ask the Court to give judgment according to the award and decree to follow it-Ramadhin vs. Ganesh, I. L. R., 4 Alla., 239; Ishwardas vs. Dosibai, I. L. R., 7 Bom., 316; and the decree passed is final-section 522; Sreenath Chatterjee vs. Koylash Chunder, 21 W. R., 248; Wazir Mahton vs. Lulit Sing, Í. L. R., 7 Cal., 166; Vishnu Bhau vs. Ravji, I. L. R., 3 Bom., 18; Venkayya vs. Venkatappayya, I. L. R., 15 Mad., 348.

Appeal Lies.- A party may appeal on the ground that the decree is in excess of, or not in accordance with, the award-section 522, and a decree in general terms is not sufficient-Ummi Fazl vs. Rahim Unissa, I. L. R., 13 Alla., 366; or on the ground that no award has been made-Sashti Churn vs. Tarak Chandra, 8 B. L. R., 315; 15 W. R.

(F. B.), 9; Bunyad Mahton vs. Nathoo, 1 C. L. R., 455; Lachman Das vs. Brijpal, I. L. R., 6 Alla., 174; or that the award is partly beyond the terms of the submission -Mana Vikrama vs. Mallicherry, I. L. R., 3 Mad., 18; Sadik vs. Imdad, I. L. R., 3 Alla., 286; Bindessuri vs. Jankee, I. L. R., 16 Cal., 482; but apparently, not on the ground that there has been no submission-Micharaya vs. Sadasiva, I. L. R., 4 Mad., 319; and see Samal vs. Jaishankar, I. L. R., 9 Bom., 254; and it will lie on the ground that the proceedings are so irregular that no judgment could be passed under this section -Boonjad Mathoor vs. Nathoo, I. L. R., 3 Cal., 376; Wazir Mahton vs. Lulit Singh, I. L. R., 7 Cal., 166; (compare Venkayya vs. Venkatappya, I. L. R., 15 Mad., 348) or on the ground that the judgment decided a question of fact not determined by the award -Ram Bhunjun vs. Sreekishen, 2 B. L. R., 260; 11 W. R., 140; and if for any reason the decision is not final, and an appeal is allowed, all the Appellate Court can do is to remand the case for disposal on the merits-Wazir Mahton vs. Lulit Singh, I. L. R., 7 Cal., 166; but the mere fact that one of the parties had not time to show cause against the award is not sufficient to support an appeal-Monji Premji vs. Maliyakel, I. L. R., 3 Mad., 59.

Under Act VIII, an appeal was formerly allowed where want of consent was alleged -Hulodhur Sungiree vs. Gunesh, 6 W. R., 60, [remarks on this case in 15 W. R. (F. B.), pp. 15-16], and on the question of costs-Khoda Buksh vs. Mowla, 14 W. R., 255.

Execution.-Appeals lie from decisions passed in execution of the decree in the usual manner-Himutoollah vs. Heerun, 13 W. R., 62; on a full stamp-Wolee Alum vs. Bebee Misrun, 12 W. R., 50.

Revision. If an objection raised is not of the kind referred to in sections 520 and 521, the Court should reject the application to file and leave the parties to a regular suit; and if the Judge inquires into its rejects it and files the award, his order will be set aside on revision-Bijdhur vs. Monohur, I. L. R., 10 Cal., 11; Samal vs. Jaishankar, I. L. R., 9 Bom., 254; and so if he refuses to file an award, his order is subject to revision-Mana vs. Mallicherry, I. L. R., 3 Mad., 68; Dagdusa vs. Bhukan, I. L. R.,19 Bom., 82; Bindessuri vs. Jankee, I. L. R., 16 Cal., 482.

CHAPTER XXXVIII.

OF PROCEEDINGS ON AGREEMENT OF PARTIES.

Power to state case

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

(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 consecutively numbered paragraphs, and shall concisely state such facts and documents as may be necessary to enable the Court to decide the question raised thereby.

Act VIII of 1859, section 328. This section applies to H. C. and P. S. C. C.

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

When value of subject-matter must be stated.

which the act agreement.

Act VIII of 1859, section 328. This section applies to H. C. and P. S. C. C.

Agreement to be filed and numbered as suit.

529. The agreement, if framed in accordance with the rules herein before 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 subjectmatter of the agreement.

The agreement when so filed, shall be numbered and registered as a 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.

Act VIII of 1859, section 329. This section applies to H. C. and P. S. C. C.

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 state

Parties to be subject to Court's jurisdiction.

ments contained therein.

Act VIII of 1859, section 330. This section applies to H. C. and P. S. C. C. No amendment can be made for the purpose of raising fresh points, or adding to or altering the facts, except with consent-Mersey Dock Trustees vs. Jones, 8 C. B., N. S., 124; 29 L. J., C. P., 239.

531. The case shall be set down for hearing as a suit Hearing and disposal instituted under Chapter V, the provisions of which shall apply to such suit so far as

of case.

the same are applicable.

If the Court is satisfied, after an examination of the parties, 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.

Act VIII of 1859, section 331. This section applies to H. C. and P. S. C. C.

The facts required to be proved under this section may be proved by affidavit-Kraal vs. Whymper, I. L. R., 17 Cal., 786.

The Court will not proceed if it appears that there is no matter really in controversy between the parties-Deo vs. Dunrze, 6 C. B., 100.

Institution of sum

of exchange, &c.

CHAPTER XXXIX.

OF SUMMARY PROCEDURE ON NEGOTIABLE INSTRUMENTS. 532. In any Court to which this section applies all suits upon bills of exchange, hundis or mary suits upon bills promissory-notes may, in case the plaintiff desires to proceed under this Chapter, be instituted by presenting a plaint in the form prescribed by this Code; but the summons shall be in the form contained in the fourth schedule hereto annexed, No. 172, or in such other form as the High Court may from time to time prescribe.

In any case in which the plaint and summons are in such forms respectively, the defendant shall not appear or defend the suit unless he obtains leave from a judge as hereinafter mentioned so to appear and defend ;

and, in default of his obtaining such leave or of appearance and defence in pursuance thereof, the plaintiff shall be entitled to a decree for any sum not exceeding the sum mentioned in the summons, together with interest at the rate specified (if any) to the date of the decree, and a sum for costs to be fixed by a rule of the High Court, unless the plaintiff claims more than such fixed sum, in which case the costs shall be ascertained in the ordinary way, and such decree may be enforced forthwith.

Payment into Court

of sum mentioned in

summons.

The defendant shall not be required to pay into Court the sum mentioned in the summons, or to give security therefor, unless the Court thinks his defence not to be primâ facie sustainable, or feels reasonable doubt as to its good faith. Explanation. This section is not confined to cases in which the bill, hundi or note sued upon, together with mere lapse of time, is sufficient to establish a primâ facie right to

recover.

Act V of 1866, section 2. This section applies to the Courts mentioned in section 538. Suits under this Chapter must be brought within six months from the time the instrument sued on becomes due and payable-Act XV, 1877, Sched. II, art. 3; and the

acceptor, drawer and endorser may be sued in one suit—Bank of Bengal vs. Kartick Chunder, I. L. R., 16 Cal., 804.

Roy vs.

It applies to defendants not residing within jurisdiction-Chandrakant Pogose, 3 B. L. R. (O. C.), 83. In Calcutta the sums must be beyond the cognizance of the Small Cause Court (section 538)-See Duff vs. Fisher, 8 B. L. R., App., 10.

The summons is in the form contained in No. 172, or in such form as the High Court may prescribe. The form in No. 172 compels the defendants to show cause within ten days. It has been held that the High Court can extend this time, and 28 days have been allowed in a summons issued for service in Peshawar-Groom vs. Wilson, I. L. R., 3 Cal., 539. If the defendant is at such a distance as we make it impossible for him to appear in ten days, the Court will stay execution for a time long enough to enable him to appear under section 534, post-Chandrakant Roy vs. Pogose, 3 B. L. R. (O. C.), 83; but see Govt. vs. Palmer, 1 Ind. Jur., N. S., 395.

Plaintiff is entitled to claim by his summons and obtained by his decree whatever sum, principal and interest, is legally demandable on the instrument-DeSouza vs. Rangalan, 6 Mad., 257. Under Act V care was taken not to admit a suit under the summary procedure unless it was clearly within the Act. Thus, where a plaint and note were presented under section 2 and the note was endorsed "received for the Chartered Mercantile Bank, James Reid, Agent," and the endorsement was struck out, the Court refused to admit the plaint, as under the summary procedure no evidence could be taken, and the plaint could not be admitted unless it was proved how the endorsement had been struck out-The Chartered Mercantile Bank vs. Seconde, 3 B. L. R., App., 146. See also Remfry vs. Shillingford, I. L. R., 1 Cal., 130. Such evidence would be admissible now. See the explanation to the section.

A hoondi which contains a direction on sufficient consideration to the drawee and accepted by him is within the Act-The East Indian Bank vs. Vallie Goolwany, 1 Ind. Jur., N. S., 247.

By section 13, Act V, 1866, a protest of a bill of exchange, inland or foreign, when purporting to be made by a notary public is prima facie evidence that the bill has been dishonoured.

Defendant showing

defence
have leave to appear.

on merits to

533. The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon the defendant paying into Court the sum mentioned in the summons, or upon affidavits satisfactory to the Court, which disclose a defence or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application, and on such terms as to security, framing and recording issues, or otherwise, as the Court thinks fit.

Act V of 1866, section 3. This section applies to the Courts mentioned in section 538. After the usual return of service, and the expiration of the period mentioned in the summons, an order of the Court for a decree should be obtained-Shiller vs. Marker, 1 Ind. Jur., N. S., 283.

Discloses a Defence.-If the defendant appears and discloses any defence, legal or equitable, he will be allowed to appear and defend-Casella vs. Darton, L. R., 8 C. P., 100; but where there is reason to doubt its bona fides, the condition of paying the money into Court, or bringing in security will be imposed-Agra Masterman's Bank vs. Leighton, L. R., 2 Ex.. 53; Ramlal vs. Haran Chandra, 3 B. L. R., 130; and where a conditional order is passed, but the condition is not performed, the order is a nullity and subsequent steps to set it aside are unnecessary-Gourdas Mistry vs. Hewitt, 12 W. R., 9; Fulton, 18. Leave to appear may be granted ex-parte; but the plaintiff can show by affidavit that the leave ought not to have been granted, or, if, granted at all, granted on more stringent terms-Vonlintzgy vs. Narayan Singh, 6 B. R., App., 64.

In giving leave to defend, the Court has a discretion to order security for costs not only where there is a doubt as to the bona fides of the defence, but also where it appears unnecessary, though allowable-Vonlintzgy vs. Narayan Singh, 6 B. L. R., App., 64.

534. After decree the Court may, under special circumstances, set aside the decree, and if necessary, stay or set aside execution, and may

Power to set aside decree.