HANUMAN SINGH Vs. RAM LAKHAN SINGH

JUDGEMENT

(1.) This is a defendant's application in revision against the order of the learned Subordinate Judge passing a decree in accordance with the terms of an award. A suit for partition of joint family property was brought in which the applicant who is minor was a defendant. After protracted litigation since 1927 the suit was referred to arbitration. The deed of reference was signed by the guardian of the applicant on his behalf. An award was made by the arbitrators. The applicant came up in revision here and the case was sent back to the lower Court with directions to give 10 days time to the parties to file such objections as they may wish to file to the award. Consequently 10 days time was given to the parties for filing an objection. An objection was filed by the guardian of the applicant, but on the day fixed for the hearing of the objection the guardian absented herself and the objections filed by the parties were heard by the learned Subordinate Judge and they were all disallowed. Thereafter the learned Subordinate Judge passed an order for decree in accordance with the terms of the award.

(2.) The applicant has come here a second time in revision. His objection now is that the deed of reference was invalid as no sanction had been obtained by his guardian from the Court to refer the matter to arbitration. This objection was not taken by the applicant before the decree was passed in terms of the award. The learned Counsel for the applicant relies on Rule 7, Clause 1, Order 32, which lays down that no next friend or guardian for the suit shall, without the leave of the Court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. It has been held by this Court in several cases that the word "agreement" does not refer to an agreement for reference to arbitration. The provisions relating to arbitration proceedings given in Schedule 2, Civil P.C., are self-contained and consequently Rule 7, Clause 1, Order 32, does not apply to such proceedings.

(3.) This matter was considered as far back as 1905 in Hardao Sahai V/s. Gauri Shankar 28 All 35. It was held there that a minor party will be bound by the consent of a guardian to refer the matters in dispute to arbitration, if there is no fraud or gross negligence although the Court has not under the provisions of Section 462 sanctioned the agreement to refer. This point was again considered in the Full Bench case reported in Lutawan V/s. Lachya 1914 36 All 69. The case cited above was followed in this case. It was observed that Order 32, Rule 7, Civil P.C. 1908, does not control Art. 1, Schedule 2. It is not therefore necessary for the guardian of a minor party to obtain the express leave of the Court before agreeing to a reference to arbitration being made by the Court. There has been no dissentient ruling since then in this Court. In Ghulam Khan V/s. Mahommad Hassan (1902) 29 Cal 167 at p. 185 their Lordships of the Privy Council observed: Their Lordships are inclined to agree with the view of Clark, J. in Jhangi Ram V/s. Budho Bai 84 PR 1901, that in the case of an award, revision would be more objectionable than an appeal. If an application in revision were admissible in a case like the present, the finality of any award would be open to question. Their Lordships, however, are of opinion that such an application is incompetent. The application in revision in the present case was avowedly an application to set aside the award.