JUDGMENT
Suhrawardy, J.
1. The facts upon which this appeal is founded are that the plaintiff-appellant brought a suit for recovery of possession on establishment of title to two cottas of land. During the progress of the suit it was referred to the arbitration of three gentlemen on an application signed by the pleaders of the parties. The arbitrators filed their award on 25th July 1925, the effect of which was to allow the plaintiff’s claim in a modified form. On 4th August, the plaintiff objected to the award on the ground that his pleader had no authority under the vakalatnama to apply for arbitration and he also made charges of misconduct against the arbitrators. The Munsif by his order, dated 15th September 1926, held that the pleader had no authority under the vakalatnama filed in the suit to appoint arbitrators and refer the matter in dispute to them. In this view he set aside the award and fixed 10th November 1925, for the hearing of the suit. On that date the defendant did not appear and the suit was decreed ex parte according to the plaintiff’s claim. Against that decree the defendant appealed and the learned Subordinate Judge of Murshidabad set aside the decree pissed by the Munsif on 10th November 1925, on the ground that the vlew taken by the Munsif that the pleader was not vested with sufficient authority to refer the matter to arbitration was erroneous and remanded the case to the first Court for an investigation into the charges of misconduct made by the plaintiff against the arbitrators. This appeal is against this order of remand and it has been argued in the first place on behalf of the appellant that the Court of appeal below had no jurisdiction to set aside the interlocutory order of the Munsif of 15th September 1925, inasmuch as it is not an order which ”affects the decision of the case” within the meaning of Section 105, Civil P.C. On the authorities and after a careful considera-of the questions raised I am of opinion that this contention ought not to prevail. Great stress has been laid on the decision of this Court in Sayma Bibi v. Madhusudan Mohanta A.I.R. 1925 Cal. There an abatemant was set aside by the trial Court. On appeal from the final decree in the suit objection was taken to the order setting aside the abatement. The lower appellate Court held that there was no appeal from an order setting aside an abatement and such an order could not be challenged in appeal from the final decree. The defendant appealed to this Court and it was argued on his behalf that the order setting aside the abatement is an order ” affecting the decision of the case ” and hence could the challenged in appeal from the final decree.
2. It was held that an order setting aside an abatement is not an order “affecting the decision of the case ” and “hence could not be challenged in the appeal from the decree. Upon the same consideration are decided the cases which have held that an order setting aside an ex parte decree cannot be challenged in appeal against the final decree as it is not an order affecting the decision of the case: Dhondu Narayan v. Waman Govind A.I.R. 1927 Bom, Sundar Singh v. Nighaiya A.I.R. 1925 Lah and Babu Ram v. Banke Behari Lal A.I.R. 1925 All. It is not necessary for me to accept the correctness of these decisions in so far as they relate to decrees passed ex parte, but the considerations which apply to cases relating to the setting aside of abatement or ex parte decree are not pertinent in the present case. An order setting aside an abatement or an ex parte decree is an order which far from affecting the merits of the case invites the parties to enter into the merits of the case to enable the Court to come to a decision upon its merits. It may be that if an order of abatement or an order passed ex parte is allowed to stand the parties will stand in a different position and their rights will be differently adjusted; but such an order cannot be said to be an order affecting the decision of the case which have been interpreted as meaning affecting the merits or aftecting questions bearing upon the merits of the case. There is ample authority in support of the view that the decision by the trial Court setting aside an award is a decision which affects the merits of the case inasmuch as the rights of the parties relating to the subject-matter of the suit will be differently settled if the award which was a decision on the merits by the arbitrators was allowed to stand. It is not necessary to cite all the cases on the point which are numerous but it is enough to point out that this view was taken so long ago as 1870 in Mothooranath Tewaree v. Brindabun Tewaree [1870] 14 W.R. 327. I cannot express myself on this point any better than what has been said by Sir Richard Couch in that case. The learned Chief Justice after referring to the setting aside of the award by the trial Court and the appeal from the final decree in the suit to the Judge where the objection was taken that the Judge had no authority to reverse the decision of the Munsif setting aside the award observed thus:
It is true that no appeal is allowable against an interlocutory order, and that the order of the Munsif setting aside the award being an interlocutory order was not open to appeal immediately, but when the Munsif had made his decree in the suit in favour of the plaintiff, it was competent for the defendant to appeal against that decree. He did so, and then he was at liberty to question the propriety of any interlocutory order which had been made, provided that the error in that order was such as to affect the merits of the case. We do not see how it can be said in this case that the error in the interlocutory order of the Munsif was one which did not affect the merits of the case, for if the award was a proper award and one that ought not to have been set aside by the Munsif, the setting it aside would be an act which would necessarily affect the merits of the case, as the award was upon the vary subject-matter of the suit and determined it.
3. It may be noted that in the corresponding section in Act 8 of 1859 under which this case was decided, the words were “affecting the merits of the case.” I do not think that the words in Section 105, Civil P.C, 1908, “affecting the decision of the case” have in any way changed the scope of those words, if they have not actually widened it. In this Court there is no case bearing directly on the point except the case in the Weekly Reporter but opinion in support of the view has been expressed in Ambica Dasia v. Nadyar Chand Pal [1885] 11 Cal. 172, in which an appeal was preferred against an order setting aside the award and it was held that no appeal lay from the interlocutory order which was only liable to revision when the final decree was passed. In Shyama Charan Pramanik v. Prolhad Durwan [1904] 8 C.W.N. 390, this point was not raised, but the judgment of Banerjee, J., indicates that the learned Judge was of opinion that such an order could be challenged in appeal from the decree. In Damodar Trimbak v. Raghunath Hari [1902] 26 Bom. 551, the same observation was made in a case in which the appeal was taken. against an order setting aside an award, namely, that no appeal lay but that it could be challenged in appeal from the decree. In Achuthayya v. Thimmayya [1908] 31 Mad, this point was directly raised and it was held that where a Court sets aside an award under Section 521, Civil P.C., 1882, and decides the case on the merits, the Court of appeal can on appeal from the final decree enquire into the propriety of the order setting aside the award.
4. In Ram Autar v. Deoki Tewari [1915] 37 All, it was held in revision that an order of a Court setting aside an award of the arbitrator and deciding that the case should be tried by the Court is an order affecting the decision of the case within the meaning of Section 105, Civil P.C, and is therefore liable to be challenged in appeal against the decree. To the same effect are the observations in Shah Muhammad Fakhruddin v. Rahimulla Shah and Rudra Prosad Pandey v. Mathura Prosad Pande A.I.R. 1925 All. The observations are no doubt made in cases which came in revision and in which opinion is expressed that the question can be enquired into in an appeal from the decree; but the observations made by the learned Judges in those cases in-order to support their order refusing to interfere in revision on this ground are certainly entitled to great weight and cannot be said to be obiter dicta. But the cases that are directly in point are those reported in Mothooranath Tewaree v. Brindabun Tewaree [1870] 14 W.R. 327 and Achuthaya v. Thimayya [1908] 31 Mad which I have no hesitation in following. This objection of the appellant must, accordingly, be overruled. It is next argued by Mr. Mitter or behalf of the appellant that the order of the Munsif setting aside the award on the ground that the pleader who referred the matter to arbitration was not properly authorized is an order which decides a matter which happened previous to the arbitration and challenges the propriety or validity of the reference The defendant, therefore, not having appealed against that order, could not be allowed to agitate the matter in appeal from the final decree. There is no substance in this contention either, as the order of the Munsif was apparently passed under para. 15, Schedule 2, Civil P.C., and it is an order against which no appeal is provided by the Code.
5. The third contention raised by the learned vakil is that the interpretation put by the learned Subordinate Judge ire the Court below on the vakalatnama is wrong and that put by the Munsif was right and should be upheld. I am unable to agree with the construction of the vakalatnama by the Munsif. In one clause in the document, the words used with reference to the power to be exercised by the pleader appointed by the vakalatnama are shalishan or solenama kariben and in another clause the words are shalishani adi kariben. The learned Munsif is of opinion that these words mean that the pleaders were authorized to act as arbitrators and they do not mean that they are vested with the right of appointing arbitrators. This interpretation of the words cannot be supported. Shalishani is a Persianised Arabic word loosely used in the Bengali language and must be construed with reference to the context. The first clause begins with the words:
I appoint the pleaders named herein and any one of them who happens to be present may amongst other things shalishani kariben.
6. As the Subordinate Judge observes shalishani is plural of shalish and means arbitrators. It will be unintelligible if one person is authorized to act as “arbitrators.” I have no doubt in my mind that the construction put upon this document by the Subordinate Judge is correct and I am fortified in this view by the decision of my learned brother in Civil Rule No. 21 of 1926, decided on 9th March 1926. This objection must also be overruled.
7. The last ground urged is that as the appeal by the defendant was against the ex parte decree the only point to which enquiry should be directed by the appellate Court was whether the decree passed ex parte in the circumstances of the case was right or wrong. In other words the authority of the appellate Court was limited to the enquiry whether the ex parte decree was passed under the circumstances which might make it binding upon the defendant or otherwise. I cannot agree to this proposition also. It is true that against an ex parbe decree the party aggrieved has three courses open to him; he may either make an application under Order 9, Rule 9 or Rule 13; he may appeal from the decree or apply for a review of the judgment or order passed ex parte. But it seems to me that where the only objection is with regard to the non-appearance of a party at the hearing on account of sufficient cause the matter can chiefly be agitated in an application under Order 9. But where the decree is against the record or against law, it can be successfully challenged in an appeal from it and if there be any error which comes within the ambit of Order 47, R 1, the ex parte decree may be questioned by an application for review. There is nothing in the Code which confines the power of the appellate Court in appeal from ex parte decree only to the investigation of the cause of non-appearance for which on the record as it stands there is hardly any material. This objection also fails.
8. All the points taken on behalf of the appellants having been overruled this appeal is dismissed with costs.
Graham, J.
9. I agree.
