VYTHINATHA AIYAR Vs. VAITHILINGA MUDALIAR

JUDGEMENT

(1.) In this case, the appellant did not appear in the Court of first instance. The other parties to the suit agreed to refer the matter to arbitration and an order to that effect was made by the Court. Judgment was pronounced in accordance with the award. A decree followed. The appellant now appeals and contends that the award purports to bind him though he was not a party to the reference. The scope of the Second Schedule, paragraphs 15 and In, Code of Civil Procedure, was considered in Second Appeal No. 1192 of 1913 to which I was a party, and it seems to me that on the authorities as they stand, an appeal would lie from a decree purporting to bind a person who never submitted to arbitration or where there has been no agreement to refer at all. The 1st respondent in the present case concedes that the decree ought not to bind the appellant and is willing to have it made explicit that it cannot be enforced against the appellant. It seems to me, therefore, that the decree should contain a clause to that effect.

(2.) The appellant contends further that the award cannot stand to any extent as he was not a party interested (within the terms of the Second Schedule, paragraph 1, Code of Civil Procedure), and he no having concurred in the reference to arbitration, the reference is altogether vitiated. He was interested, he says, as the 4th defendant is a purchaser from his father, the deceased 1st defendant, and if the suit is decided against the 4th defendant he (the appellant) will be responsible to the 4th defendant. The appellant was, however, content to let the suit go on without appearing at the hearing and to trust to the 4th defendant to contest the suit as he pleased. The 4th defendant could have consented to a decree in the absence of the 2nd defendant. He could equally consent to the section of the arbitrator as the Tribunal which was to adjudicate upon the matters in difference. It seems to me that the appellant cannot be said in the circumstances of this case to be interested in the arbitration between the other parties to the suit, or interfere with the arbitration so far as they were concerned.

(3.) The decree should, in my opinion therefore, be modified to the extent to which it is conceded that it ought to be modified. Otherwise the second appeal should be dismissed with costs. Phillips, J.