HANSKUMAR KISHANCHAND versus THE UNION OF INDIA

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.

p. 1179

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 he 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 con · t!'ng of Grille C. J. and Padhye J. By their j ' gment dated December 31, 194 7, they enhanced tho nnual rent payable to the appellant by lt sum 0£ Rs. 3,250, and they also allowed certain other sums as compensa~ion for dislocation of the High S,chool which • wits being rull on the property. The appellant applied for leave to appeal hgainst this judgment to the Federal Court under ss. 109 and 110 of the Code of Civil Prneedurn in n'spect of the amounts dioallowcd. A simil:ir application was also filed hy the c;overnment with reforcnce to the enhancement of compenhtion. 011 August 25, 1949, hoth these applicatiolls were grantPd, and certitic1tk was issued that the appeals folfillcrl t.he requirements of ss. 109 and 110 of the Code of Ci,·il l'rocerlme. Tlrnt i" how the two appeals come hPfore us. Hanskunmr Kishanchancl is the a.ppellant ill Ci,·il Appeal ~o. 224 of 1954 and the Cnioll of India, ill Civil Appeal ;\o. 225 of 1954.

pp. 1179–1180

At the opening of the hearing, a preliminary object ion was t>J.ken bv the le:trned Solicitor.General to the m>tintainability of Civil Appeal No. 224 of 1954 on tlw groull<l that the judgment of the High Court passed in appeal under s. 19(1) (f) wits an award and not a judgment, decree or order within the meaning of ss. IO!l aud I IO of the Corle of Cid! Procedure, alld that accordingly tlw appertl was incompct.cnt. If this contention is right, Cidl Appeal Xo. 22.~ of 1954 preferred by the Government wo11Id also be incompetent. That, of course, doe~ not preclude the (;overnmcnt from raising the objection a8 thP maintainability of the appeal, th6ugh the remit of ow· upholding it would entail the di8rnissal of Civil Appeal Xo. 225 of 1954 as well. We accordingly proceed to dispose of the objcc· tion on the merits.

p. 1180

It will be convenient al this stage to rPfer to the proYisions of the Act hearillg upon the presci1t controversy. Section 19(1) provides that :

p. 1180

" 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 accorclancc with the principlcs,l!_erl'inafter ~ct nut. ..... ". "' Section I~(!) (a) provides for the amount of compc't'.,..._ ~ation being fixed by agreement, anrl s. 19( I) (h) Ptmcts that:

p. 1180

"\Ylwrc llO i;1u:h agre1mwnt can be rea,:hcd, the CPntrn,1 novcrnmcnt sball appoint as arbitrat-Or a. 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 :

pp. 1180–1181

" 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." Th~n we have sub-s. (g), which is as follows:

p. 1181

"Save as provided in this section and in any rules made thereunder, nothing in any law for the time be1ng in force shall apply to arbitrations under this section."

p. 1181

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 appealabl~ 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. Achhru 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 .. Y.Y(.0(f), it becomes a civil proceeding under the

p. 1181

~rdinary jurisdiction of the Court, and that any decision , therein is open to appeal under ss. 109 and 110 of the Code of Civil Procedure. He further contends that even apa11t from those provisions, the.appjla! was competent under Cl. 29 of the L~tters Patent, and that, the certificate granted by the High Court is under that }irovision as ,; ell.

pp. 1181–1182

Before discussing the authorities cited on either side in support of their respective contentions, it will be useful to state the well-established pri11ciples applicabl,• to I-lie determination of the present quest-ion. "'hen p11rl-ies enter iuto an agreemeut to haYc their dispute settled by arbitrntion, its effect is to take t-hc /is out of the hands of the ordin:11'y Courts of the land and t-0 entrust it. to the decision of what has been termed a private tribuual. Such an agrecmcut is not hit by s. 28 of the Contract Act as being in rcstmint. of legal proceedings, because s. 21 of the Specific Relief Act expressly provides that "sarn

p. 1182

prnYided by the Arbitration Act, 1!!40, no contraet lo refer J>resent 01· future differences to arhitrntion slmll be specifically enforced; but if any J>ersou who has marlc stu:h a contra<:t. .. :rnd has refused to perform it sues in respect of any Huhjcct which he has contrncted 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 t1rhit-ration is held iu pursuance of such an agreement and th11t- results in a deci;;ion,.that decision takes t-hc place of an adjudiciit-ion by the ordinary Conrt-s, •ind the rights of the partiPs arc thereaft.er regulated by it-. It is true thtit under the law tlw Courts have t.he authoritv to aside the :Hrnrds macle LY arbitrators ou· certain grounds stwh as that I-hey :i°re on maU.ers ns>t referred tn arhitrntion, or tlrnt the arhitrntors had miscoll(]uc:ted thcmseh'CH, that thfn'e are 1:rror• apparcl1ton the face of t.hc aw:ird. But where the award is not open t.o any sueh objection, the Court has to pass a decree in terms of the award, and under s. I 7 of the Arbitration Act, tin appc:1l lics against- such a decree only on the ground that- it is in excess of, or not. othc1""·~ in accordance 1dth the award. In ot.her words, it is t.he decision of the arbit.rator where it is not set aside tha\..

p. 1182

i>peralc·s as the real adjudic:Lt.ion binding on the • parties,· and it is with a l"iew to its enforcement. that the Coi1rt. hi altthorised to pass ,a decre1~ in terms thereof. There is thus' a sharp disti11vtion between ·a, 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 exerci~e 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 llO 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 patties. It is for this reason that s. 46 of the Arbitration Act X of 1940 enacts that:

pp. 1182–1183

"The provisions of this Act, except sub-section (1) o{ section 6 and sections 7, 12, 36 and 37 shall apply to every arbitra.tion under any other enactment for the time being in force, as if the arbitration were pursuant to au 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."

p. 1183

Nor do~s 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 £o appeal under the ordinary law applicable to decisions of Courts. A statute, however, might provide for the decision of a disput<l by a Court as Court and not as arbitrator, in which case· its decision will be a decree or order of ·'Court in its ordinary civil jurisdiction, anq that will attract the normal procedure governing the decision of that Court, and a right of appeal will be comprehended t!1erein. The position therefore i$ that if the reference is to a Court as persona designata, its decision will not Le open t~ appeal except to the extent that. the statute so provides ; but that if, on the other hand, it is to a.· Court Court, its decision will be appealablc under the gcncral law, unless there it;.somethiug in the statuu', which abridges or takes ;1way that incident. lt may be a question whether the reference to Court under particular sta.tutc is to it

pp. 1183–1184

a Court or as persona rlesignata; Lut when onc:c: it is determined that it is it. as persona designalu, thert• can be no question that its decision is not open to appeal under the ordinary law.

p. 1184

W c shall now consider the aul horities bearing on the question. On hehalf of the Government, the decisiozrn in Rangoon Botatoung Company v. 'l'he Collector, Rangoon('), 'l'he SJJecial O.fficer, Salsette B1ii/.ding Sites Dossablwi Bezonji ('), The Special O.fjicer, 8alsette Bniuling Sites v. Dassabhai Bozanji Jlfotiwauz (3), Manavikraman 'l'irwnalpad v. 'J'he Collector of the 1Vi/gris (') ancl Secretary of State for India, in Council v. Hindu.sthan Co-OJleratire Insurance Society Liinittd (') were relied on as supporting the content.ion that the prcse11t 11ppeab1 are incompetent. Jn Rangoon Botatowu1 Company The Collector, Rangoon (1), the facts "·ere prnt certain propertic8 h11d been ac11uired under the Land Acquisition Act. of 18!)4, and t.he CollectDr had determined the amount of compensatio11 payable the quondam ow11ers. On their object ion as the qimntum of compensation, the matter referred to the decision of the Chief Court <if Burma. It was heard by a Bench of two Judges, who dl't<>rmined t.hat a stun of Rs. J:~,25,720 was payable as compensat.ion. . Dissatisfied with this decision, tlw ow11ers preferred a11 appeal to the Pri\')' Council under the pro\•isions of the Code of Civil Procedure. A preliminary ohjcctio11 was t.aken tD the maintainability of the appeal the ground that. the decision sough.t to be appealed against wa8 not a judgment of Court hut.

p. 1184

award. and was t.Jwreforc not appealahle. In giving pffcd to this objection, the Board ohscrvnd:

p. 1184

"Their Lordships cannot accept the argument or ~m. 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. "

pp. 1184–1185

Shortly after this judgment was pronounced, the question arose for determination in The Special Officer, Salsette Building Sites v. Dossabhai Bezonji ('),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 (Jollector, Rangoon ( 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 con~ention, the High Court reTerred to the observations in Rangoon Botatoung Company's Case(') already quoted, and observed:

p. 1185

"This passage shows that it is a inistake 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 Code 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.Pi;,ivy Council in The Special O.fficer, Salsette Building· Sites v. Dassabhai Basanji Motiwala ( shows that the interpretation put by the Bombay High Court in The Special O.fficer, Salsette Building Sites v. Dossabhdi Bezonji was accepted as correct.

p. 1185

In JJ1 a!iavikraman Tirumalpad v. 'Jlhe Collector of the.

p. 1185

Xilgn'.s ('), the question was "·hether it judgment. the High Court passed'in an appeal under the Land AcquiAition Act was a. judgment within the meaning of Cl. 15 of the Letl{)rs P11tcnt so as to entitle a party to file a further <tppeal to the High Court under th:Lt. provisil>tl, and it was held, considemtion'of the authorities above referrer\ to, that it was not. Su:rc. tary of Sta.le for India in Co11.nci/. ,. . llindusthan Co. 071eratirr. Insurance Society Limited(') is a decision unJer the Calcnttn. Improvement Act, 1911. Under that Act, there is t.ribumtl constituted for deter. mining the 1Lrnou11t of com pen sat ion payable a.cquisition of land, and under the Citlcutta Improvement (Appeals) Act, 1911, an appeal i~ pruYirled in certain c:i;es from t ht! decision of the tribunal to the Cak11tt11 Higi1 Cunrt. The point that a.rose for detcrminat.ion was whether the decision given by the High Court in appeal under this proviHion was open fnrthPr appeal to the Privy Council. In •Lnswering in the negative, the Privy Council ohsen·ed that ,·icw of the deci8ion in Hangoon Botatoung Company' The ()oUechJr, Rangoon('), there could be no right 1tppcal again8t the de~iHion uf the High Court·. further held that this conclusion w1i,: not :dfoctPd liy t.he amendnwnt of the L:rnd Acquisit.ion Act., IO:!i, providing for "" appeal to the Privy Council against t.he decision of the High Co mt under s. 54 of that Act, as that amendment could not be heltl to lmve been incorporated by reforencc in the Calcutta Improvement Act, l!H I.

p. 1186

The law as 11ticl down in t.he ahoYe a.uthohties mav thus be summed up: l t is not e1·ery decision given a Court that could be said to he a judgment, decree order within the provisions of the Code of Civil Procedure or the Letters Patent. Whether it is so not will depend whcLher the proceeding in which was given came before the Court in its normal ei\•il jurisdiction, or rle hors it as designa.U1. ~' liere the dispute is reforrcd to the Comt for dewrmination l>;' way of' arbitmtion <~S in Ranyoon Hot.atouny Com· Jiany v. 'l'he Colkt:ior, Ran~1oon ('), en· where it. come;

p. 1186

.. by way of appeal against what is statedly an award as in The Special Officer, SalsHte Building Sites v. Dossabhai Bezonji ( Manavikraman Tirumalpad v. The Collector of the N ilgris ( and Secretary of State Joi· India in Council v. Hind1tsthan 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.

pp. 1186–1187

Now, Mr. Achhru Ram contests this last proposition, and relies strongly on the decision in National Telephone Company Limited v. Postmaster-General('), as supporting his position. There, the question arose on the construction of certain provisions of the Telegraph (Arbitration) Act, 1909. Section 1 thereof enacted that certain d"ifferences between the Postmaster-General and any other person should, if the parties agreed, be referred for decision to the Hail way 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 Hail way and Canal Commission had determjned 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 u'nder 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.:

p. 1187

" When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that an:y general right of appeal from its decision likewise attaches."

p. 1187

5s . . It may be noted that it was the use of the word "arbitration " in tM title to the Act that furnished the ground for the contention that the proceedings before the Commission were of the nature of a,rbitration. But that description, however, could not alter the true character of the reforcnce under tlfo Act., which \\as in terms tot.he 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 p:Lrties. That, however, could not make any diffrrence 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 pa,rties, as for example, on a case stated under Order 36 of the Code of Cid! Procedure. There is thus nothing in Sat·io1wl Telep/tone Company Limited , .. Postnmster-Gerwrnl ('), \\·hidi can be said to conflict with the law as laid down in Rangoon Botatoung Company '" 'l'he Collector, Rangoon (') that when the reference is to a Court as arbitrat-0r, its decision is not open to appeal.

pp. 1187–1188

The distinction bet.ween the two classes of cases, where the reference is to court as court and where the reference is to it. as arbitrat-0r, was ag<tin pointed ot1t by the Privy Council in Secretary of State for India v. Cltelikani llama Rao('). There, the question arose with reference to certain provisions of the Ma,dras Forest Act, 1882. That Act pro,·idcs that claims to lands which are sought to be declared reserved forests by the Go,·ernment are to ne enquired into by the Forest Settlement Ofiicer, (1nd an appeal is provided against his decision to tb.e District Court. The point for decision was whether the decision of the District Court was open to further appeal under the provisions of the (-Ode of Ci\'il Procedure. The contention was that the reference to the District Comt under the Act was to it not u,s a Court but as arbitrntor; that t.herefore its decisiou wao not open to appeal Qn the principle laid down iu Rangoon Botatoung Company's Case('). In repelling this contention, ,\.C.

p. 1188

(191~) Lord Shaw observed that unde;r the Ln,rnl Acquisition Act the proceedings were "from beginning to end ostensibly and actnally arbitration proceedings '', but that the proceedings under the Forest Act were essentiaJly 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". ·

pp. 1188–1189

'l'he principles being thus well-settled, we have to see in the present case whether an appen,l to the High Court under s. I9(l)(f) of the Act comes before it as a Court or as arbitrator. Under s. I9(l)(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 n,ppeal would hn,ve lain to the High Court against the decision of such an arbitrator. Thus, the provision for appeal to the High Court under s. 19(l)(f) can only be construed as a reference to i.t as an authority designated and not as a Court. The fact that, in the present cn,se, the reference was to a District Judge would not affect the. position. Then again, the decision of the n,rbitrator appointed under s. 19(l)(b) is expressly referred to in s. 19(l)(f) as an award. Now, an appeal is essentially a continuation of the original proceedings, and if the proceedings under s. I9(l)(b) are arbitration proceedings, it is difficult to see how their character can suffer a change, \Vhen 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 ('), JJianavikraman Tirumalpad v. The Gollectcw of the N ilgris ( and Secretary of State for India in Council v. 1-Iindusthan Go-operative Insurance Society Limited (') proceed all on the view. that an appeal against an award cm~tinues to be part .of, and a· further slage of the 9rigimd arbitration proceedings. In our \'iew, a proceeding whir:h is at the inception an arbitration proceeding must rctuin its charncter as arbitmt.ion, even when it is taken up in appeal, whcro that is prn\'idcd by the statute. •

pp. 1189–1190

The question w hethcr an iippeal um!P.r s. 19( I )(f) is of the nature of arbitration prnce<'dings, and whether ihe decision given th(>rein is an award eanw up directly for consideration in Kollrual Silk Filutwes Ltd. "· l'ro1:ince of Jlladra" (') before a Bench of the ;\fadras High Court consisting of Patanjnli Sastri a11d Chandrasekharn Aiyar J,J. and it was helcl hy them that the word " arbitration " in s. 19( I )(g) of the Act coYered t.hc entire procee!li11gs from their commencement before the arbitrator to their terminal.ion in the High Court on 11ppeal where an appeal Imel been preferred, ancl the High Court in hearing and deciding the appeal acted essentially as au arbitratio11 tribunal. We agree with this decision that the appeal under s. Hl(l) (f) is an arbitration proceeding .• \Ye must therefore hold that the dccisio11 of the High Court in the appeal under that provision is not a judgment, decree or ortler either within ss. 109 and ·110 of the Code of Civil Procedure or cl. 29 of the Letters Patent of.the ~agpur High Court, which corrcspomfa to cl. 39 of the Letters Patent of the Calcutta, :Madras a11d Bomlmy High Courts, and that, therefore, the present appeals arc iucompctent.

p. 1190

lllr. Achhrn Ham fi11ally contended that even if no appeal lay under ss. 109 and 110 of the Code of CiY ii Procedure or d. 20 of the Letters Patent, it was, nC\'('l'thelcss, within the competence of this Court' to grant leave to appeal, and that this was a lit caHe for the grnut of such leave. He argued that the Privy Council had the power t.o gm11t leave to appeal against the decision of the Nagpur High Court in the appeal under s. ID(l) (f), that under s. 3(ft)(ii) of the Federal Col1l't ·(En- 1'1rgement of ,J uriscliction) Act I of 1948 that power became vested in the Federnl Court, and under Art. 135 "it has devolved on this Court, and that in the exercise of that power we should grant leave to apptal against ·~lad. 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 civ ii 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).

pp. 1190–1191

In the result, we dismiss both the appeals as incompetent. _The parties will bear their own costs in this Court.

p. 1191

Appeals dismissed. THE STATE OF BIHAR

p. 1191

v. D. N. GANGULY. & OTHERS

p. 1191

and

p. 1191

A. K. JJ.)

p. 1191

Industrial Dispute-Supersession of adjudication pending before industrial tribunal--V alidity-Power of appropriate Govcm111ent- Industrial Disputes Act, I947 (XlV .of I947), IO(I)-General Clames Act, r897 of I897), s. ZI.

p. 1191

SecticJ'n ro(r) of the Industrial Disputes Act, 1947, does not dispute pending adjudication by the tribunal constituted for that purpose. Nor cans. of the General Clauses Act, 1897. vest such a po\ver by necessary iinplication.

p. 1191

It is well settled that the rule of construction embodied in s. 2r the General Clauses Act can apply to the provisions of a statufe only where the subject matter, context and effect of such provisions in no 'vay inconsistent ,vith such application. So judged it is clear that that section cannot apply to~. ro(r) the Industrial Disputes Act. •

p. 1191

Mimyva Mills Ltd. v. Their Workmen, [r954] S. C.R. 465,• held inapplicable.

p. 1191