PACHKAURI RAM Vs. NAND RAI

JUDGEMENT

(1.) The suit out of which this appeal has arisen was brought for recovery of possession of a plot of land. The suit was referred to arbitration on the 4 of March 1907. The arbitrators submitted their award on the 2 April, 1907. On the 11 of April 1907, objections were filed by the defendants. One of the objections was that one of the plaintiffs Pad died and that his heirs had not been brought on the record. The learned Munsif on the 20 of April 1907, set aside the award and sent back the case to the arbitrators for decision, giving them time up to the 4 of May 1907. He said: "The arbitrators have submitted their award. It is objected to on the ground, inter alia, that one of the plaintiffs had died during the arbitration and before the award, hence the award is illegal. I am of opinion that this contention must prevail. The plaintiff Gopichand died two weeks before the 12 of April 1907. The arbitrators not only delivered and made the award on the 2 April, 1907, but they examined witnesses on the 1 of April 1907, i.e., after the death of one of the plaintiffs. Of this fact (i.e. the death of one of the plaintiffs) the other plaintiff, the defendants, and, possibly the arbitrators, could not have been ignorant. Hence the award is defective, as the representatives of the deceased plaintiff had not been brought on the record before the case was heard and award made by the arbitrators. Under these circumstances the ruling in Chetan Charan Das V/s. Balbhadra Das,(1899) I.L.R. 21 All. 314 would not apply. The award must therefore be set aside. As the representative of the deceased, plaintiff has been brought upon the record and he agrees to the submission, it is ordered that the award of the 2 April, 1907, be set aside and the case be sent back to the arbitrators for decision. The arbitrators are given time up to the 4 of May 1907, to make their award."

(2.) The arbitrators made a fresh award and the learned Munsif passed a decree in accordance with that award. The defendants appealed and the learned Subordinate Judge sent the case back under Section 562 of the Code of Civil Procedure. The plaintiffs have preferred an appeal from that order.

(3.) It is contended on their behalf that the Court of first instance was competent to refer the case again to the arbitrators; that its action amounted to a remission under Section 520 (c) of the Civil P. C., and that no appeal lay to the lower appellate Court.