DURGA CHARAN DEBNATH Vs. GANGA DHAR DEBNATH

JUDGEMENT

(1.) This is an appeal by the plaintiffs and arises in a suit for partition. There were numerous defendants to the suit; defendants 12 and 14 however, did not enter appearance in the suit; the other defendants filed their written statements and on 2 April, 1925 issues were settled. Nearly a year after, an application was filed by all the parties to the suit except defendants 12 and 14 in which they prayed to the Court for referring the matter in dispute to arbitration. The Court acceded to the application and referred the matter in dispute between the parties to arbitration on 7 April 1926. The arbitrators submitted their award. Some of the defendants objected to the award on the ground that the reference was invalid as all the parties to the suit namely defendants 12 and 14 did not join in the application for reference to arbitration. The objection was overruled by the Subordinate Judge on the ground that defendants 12 and 14 were not interested in the subject-matter of the litigation within the meaning of para 1, Schedule 2, Civil P.C., and relied on the statements of defendants 10, 11 and 13 to the effect that the share of defendants 12 and 14 in the suit lands was transferred in their favour and that they are no longer interested in the disputed lands. He accordingly confirmed the award and decreed the suit in terms of the award.

(2.) Against this decree two appeals were preferred to the District Judge of Tipperah by defendant 12 and defendants 10, 11, 13, 15, 16, 17, 18 and 23 respectively. The lower appellate Court has set aside the award on the finding that defendants 12 and 14 were interested in a part of the property in suit and as they did not join in the reference to arbitration the Court had no jurisdiction to make the reference. He accordingly remanded the case to the Court of first instance.

(3.) Against this decision the present appeal has been brought and it is contended that no appeal lay against the decree of the Subordinate Judge to the District Judge as no appeal lies from a decree passed in accordance with an award and the lower appellate Court acted without jurisdiction in entertaining the appeal and setting aside the decree passed in accordance with the award and reference is made in this connexion to para 16 (2), Schedule 2, Civil P.C. In our opinion this ground is not tenable. For it is conceded in this case that defendants 12 and 14 were interested in a part of the disputed property and as a matter of fact plot No. 1226 in which defendants 12 and 14 are interested had been directed to be partitioned by the arbitrators in their award, and as these persons did not join in the reference there was no valid reference to arbitration and the award was wholly infructuous. In our opinion the Court had no jurisdiction to make the reference and para 16 contemplates an award made in a case where there has been a valid submission to arbitration. The appeal lay to the District Judge as the reference itself is impugned for want of consent of the parties interested. This view is supported by a decision of this Court in Fanindra Nath Roy V/s. Dwarka Nath Roy [1921] 25 C.W.N. 832. It is argued however that whatever view might have been taken with regard to the right of appeal under the Code of 1882 there can be no question that under the Code of 1908 even if the award is invalid by reason of there not having been a proper submission by all the parties interested, no appeal would lie against the decree based on such invalid award and in support of this contention reliance is placed on a decision of the Lahore High Court in the case of Balkishan V/s. Sohan Singh Ladha Ram A.I.R. 1929 Lah. 476. This decision no doubt supports the contention of the appellant but it dissents from the decision of this Court referred to above. We are bound to follow the decision of our Court in preference to the decision of the Lahore Court. It is plain that before the jurisdiction of the Court to make an order of reference is invoked, there must be an agreement, between all the parties interested, that the matter in difference between them shall be referred to arbitration.