Hanskumar Kishanchand Vs. The Union of
India  INSC 70 (22 August 1958)
AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B.
CITATION: 1958 AIR 947 1959 SCR 1177
Appeal to Supreme CourtMaintainability-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.
These two appeals were preferred against the
decision of the Nagpur High Court in an appeal underís. 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 there from :
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 Codeof 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.  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 appealable 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.
There can be no difference in law between an
arbitaration by agreement of parties and one under a statute. A reference 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 designate 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,  A. C. 546, explained.
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 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 there under, 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 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 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 there under.
" 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 the provisions of tile Code of Civil Procedure. A
prelimilary 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, 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 Improvement 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 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)  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
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)  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 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
(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 commencement 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 asan 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.  Mad. 490.
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
The parties will bear their own costs in this