BENI MADHUB MITTER Vs. PREONATH MANDAL

JUDGEMENT

(1.) In this appeal, which arises out of a suit for declaration of title to, and recovery of possession of, certain immoveable property, the question raised on behalf of the appellant, the defendant No. 2, is whether the Lower Appellate Court was right in holding that that defendant was bound by the award of the arbitrators to whom the case was referred, although he was not a party to the reference, by reason of acquiescence.

(2.) It is admitted that the defendant No. 2 did not join in the reference to the arbitration that was made in the cases. The ground upon which the learned Judge below has held him bound by the award is thus stated in his judgment: "The conduct of the defendant No. 2, when his advantage was being debated, warrants the conclusion that he consented, as did his sub- tenant, to the arbitration proceedings."Then after considering certain cases presently to be noticed, the learned Judge observes: " But this defendant was fully aware of the proceedings, as notice was given to all the pleaders; he sent his servant to produce a document before the arbitrators; and he declined to produce other papers. He awaited the result of the reference and then preferred an objection to the Court, which did not impugn the award on the merits. Such conduct clearly disentitles the defendant No. 2 to relief."

(3.) We are of opinion that the facts referred to in this judgment do not warrant the conclusion that the defendant No. 2 is bound by the award by reason of his acquiescence in the reference. It is not said that this defendant did anything beyond sending his servant to produce a document; and this was done not at the instance of the defendant himself, but in obedience to a summons requiring him to produce the document, the summons being issued at the instance of the defendant No. 7. It is not shown that the defendant No. 2 took any part in the proceedings before " the arbitrators. 306 It is not even suggested that he did. Mere silence on his part, and his omission to inform the arbitrators that he was not a party to the reference, cannot be taken to be sufficient to make 2 the award binding upon him.