JIRIJANATH ROY CHOWDHURY Vs. KANAI LAL MITRA

JUDGEMENT

(1.) This appeal arises out of a suit for accounts brought by the plaintiffs against the defendant No. 1, who was a gomasta of the plaintiffs, and the other defendants (defendants Nos. 2 to 7) who as sureties of the defendant No. 1 had executed a security bond. The suit was originally filed in the Munsif s Court on the 10th May 1912, being valued at Rs. 900. Subsequently the valuation was raised to Rs. 6,438 and the plaint was taken back from that Court and filed in the Court of the Subordinate Judge on the 16th June 1913.

(2.) Only the defendants Nos. 2 and 3 appeared and filed a written statement in the suit and on the 30th June 1914 an application was made for referring the matter in dispute to the arbitration of one Amrita Lal Hazra. The Court accordingly referred the matter to the arbitrator, and the latter submitted his award on the 17th August 1914, by which he held that the defendants were liable for Rs. 753-9-6 only. The plaintiffs took objections to the award on various grounds, the main ground being that the arbitrator gave the plaintiff s man to understand that after making his own enquiries the latter would be given an opportunity of proving his case, but that he gave his award without giving the plaintiffs such opportunity.w The defendant No. 1, however, denied this in his affidavit, and the Court below overruled the objection holding that the plaintiffs were not misled by the arbitrator, and there being no ground for setting aside the award gave judgment in conformity with it, and the suit was accordingly decreed for Rs. 753-9-6 against the defendants.

(3.) Upon these facts there is no appeal against the decree based upon the award, but it is contended before us that all the defendants not having joined in the reference to arbitration, the arbitration is wholly invalid. It appears that some of the defendants viz., defendants Nos. 4 to 7, did not appear in the suit at all and the petition to the Court below to refer the case to arbitration was not signed by them or by any Pleader on their behalf. Now Clause 1, paragraph 1, of the Second Schedule of the Civil Procedure Code provides that "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." It is essentially necessary therefore that all the parties interested must agree before any reference can be made. It is true that the defendants Nos. 4 to 7 did not appear in the suit, but the seventh issue in the case was "did the other defendants (Nos. 2 to 7) at any time act as am-mukhtears or agents and as such were liable to the plaintiffs", and the decision of the arbitrator was that although they did not act as am-mukhtears and could not, therefore, be held liable as such, they had executed the security bond and were liable as sureties. The arbitrator accordingly made an award against all the defendants for Rs. 753 9-6 and the Court below has made a decree for that sum against all the defendants. It cannot, therefore, be said that the defendants Nos. 4 to 7 are not "persons interested" in the suit.