TARA PRASAD BALIASEY Vs. BAIJNATH PRASAD BALIASEY

JUDGEMENT

(1.) This is an appeal from an order refusing to make a reference to arbitration on the appellants application under para. 17, Schedule 2, Civil P.C.

(2.) Appellant 1, who is the lather of the other appellants, is the elder brother of respondent 1 of whom the other respondents are the sons. The parties are members of a joint Mitak-shara family. The application under para. 17 was to the effect that there was an agreement, dated 11 May 1937, between appellant 1 and respondent 1 to refer their disputes regarding the division of their joint family properties to the arbitration of four gentlemen named in the agreement. There was some attempt by the arbitrators to carry on the arbitration, but owing to the laches of the parties they could not proceed in the matter. Afterwards the respondents filed a partition suit (No. 1 of 1938) against the appellants. Thereupon the appellants presented their application under para.17 praying that the agreement, dated 11 May 1937, be filed in Court. The application was opposed on various grounds, the most important of which is that the arbitrators refused to act and give their award. At the hearing three of the arbitrators gave evidence in support of the respondents version. The learned subordinate Judge, accepting their version, dismissed the application. Dr. D. N. Mitter on behalf of the appellants contends that the grounds on which the Court below has refused to make the order of reference were not sufficient within the meaning of para. 17 of Schedule 2, Civil P.C.

(3.) The relevant portion of that paragraph is Clause (4), which is as follows: Where no sufficient cause is shown, the Court shall order the agreement to be filed and shall make an order of reference to the arbitrator appointed in accordance with the provisions of the agreement or, if there is no such, provision and the parties cannot agree, the Court may appoint an arbitrator.