FAZAL ILAHI Vs. PRAG NARAIN

JUDGEMENT

(1.) IN this case an order of reference outside the court was made to two arbitrators and an umpire, both the arbitrators being vakils of this Court and the umpire being a barrister, formerly of this Court. No order of reference was found necessary or was in fact obtained under paragraph 17 of the second schedule, we do not know why, but presumably because the parties were reasonable men of business and they did not consider it necessary to waste time and money in obtaining an order when they were entirely agreed about the procedure. The arbitration was begun, but unfortunately it fell through owing to one of the arbitrators declining to act. Thereupon, the present appellant applied to the Subordinate Judge of Allahabad for an order of reference under paragraph 17. and for an order under paragraph 5 appointing an arbitrator in the place of the vakil who had retired. The learned Judge took a very narrow view of the matter. He held that he was unable to appoint a fresh arbitrator, because there was no provision to that effect in the deed of agreement, and that it was not proposed to appoint anybody who was specifically named in that deed of agreement. If it were necessary, we should be prepared to hold that the words in paragraph 17, Sub- clause (4), (which enables a court to make an order of reference to a particular arbitrator at the time of filing the reference) "if there is no such provision and the parties cannot agree," cover a case where there has been a provision for a particular arbitrator who is either dead or retired. If ho has died or refused to act, it is as though there were no provisions. But apart from that we think that the case is entirely covered by the decision in the rather curious case of Bhagwan Das V/s. Gurdayal (1921) 19 A.L.J. 823, and particularly by the principle laid down in that case which we entirely endorse: "where a party has gone to arbitration in a case in which if he had refused to go to arbitration an order of reference would have been made under paragraph 17, it is too late for him, when a difficulty arises at a later stage of the proceedings which has not been provided for unless.an order of reference has been made, to dispute the right of his opponent to obtain an order of reference under paragraph 17." The decision in the case of Bala Pattabhirama Chetti V/s. Seetharama Chetti (1894) I.L.R. 17 Mad. 498 really supports the appellant, although the learned Judge did not seem to think it applicable, and the decision which he followed, namely, the case of Ahmad Nur Khan V/s. Abdur Rahman Khan (1919) I.L.R. 42 All. 191, to which a member of this Bench was a party and which both of us endorse, has nothing whatever to do with the question raised in this case. The appeal must be allowed with costs and the matter sent back to the Subordinate Judge with directions to file the agreement of reference and to proceed with the appointment of the arbitrator in accordance with the provisions of the schedule.