JHINNO SINGH Vs. BRAHMDAT SINGH

JUDGEMENT

(1.) This is an application for the revision of an order of the Subordinate Judge of Azamgarh maintaining the award of an arbitrator in execution proceedings. The facts are given fully in the judgment of the trial Court. It is only necessary to say that the decree-holder was proceeding in execution against seven judgment- debtors, who were jointly and severally liable for a sum due to the decree-holder for mesne profits, and the question for decision was the amount of the sum for which they were liable. Of the seven judgment-debtors, five joined the decree- holder in application for a reference of this matter to arbitration, and the reference was accordingly ordered by the Court. At that stage all the seven judgment- debtors were jointly and severally liable for the amount of the decree, though at a subsequent stage two of them, Jagdeo Singh and Faujdar Singh, were exempted by the decree-holder. When the award was filed, an objection was lodged on the ground, among others, that as all the parties had not joined in the reference, the reference was illegal. But the trial Court relying on the decision in the case of Bankey Lal V/s. Chotey Mian Abdul Shankur 1931 All 453, has held that the reference was not invalid merely because two of the judgment-debtors, who were jointly and severally liable, did not join in it.

(2.) Under para. 1, Schedule 2 Civil P.C.: where in any suit all the parties interested agree that any matter in difference between them shall be referred to arbitration, they may at any time before judgment is pronounced, apply to the Court for an order of reference.

(3.) In the present proceeding it is admitted that all the seven judgment-debtors were jointly and severally liable, and therefore the decree-holder was in a position to execute against any one or more of them. They were therefore one and all interested in the suit at the stage which it had reached when the reference to arbitration was made. If there were any doubt as to the law on the point, it has been decided by decisions of this Court reported from time to lime, and I need only mention three : Haswa V/s. Mahbub (1911) 10 I.C. 559 and Shib Lal v. Chatarbhuj (1909) 31 All 450, where at p. 452, it has been remarked: Therefore, it is manifest that the reference was not made by all the parties to the suit as mentioned in Section 506 of Act 14 of 1882. As there was no reference to arbitration by Badri Das and by one of the defendants, the arbitrator appointed under the reference had no power to decide the matter in controversy and the award was ultra vires.