JAGANNATH SAHU Vs. CHEDI SAHU

JUDGEMENT

(1.) This is an application for revision arising out of a suit brought by the applicant before the Subordinate Judge of Gorakhpur for a declaration of his right to certain property impugning a sale-deed executed by him in favour of the defendant. On 5 May 1928, parties agreed to refer their dispute to the arbitration of Babu Bhagwati Prasad, vakil. They moved the Court for an order of reference which was accordingly made. Babu Bhagwati Prasad, however, refused to act as arbitrator and by an application, dated 29 May 1928, the defendant nominated no less than nine persons, any one of whom, he desired to be appointed as an arbitrator in place of Babu Bhagwati Prasad. The plaintiff was not willing to have the case decided by an arbitrator. He, therefore, prayed that the arbitration be superseded and the case tried before the Court. The learned Subordinate Judge passed what appears to be a most extraordinary order, He appointed, Babu Ganesh Prasad, vakil, to act as arbitrator in place of Babu Bhagwati Prasad on payment of Rs. 100 by the parties half and half. The plaintiff expressed his inability to make any payment. The Court recorded an order dated 5 June 1928, in these terms: The applicant will have to pay the fees otherwise it will be recovered by attachment of his property.

(2.) Aggrieved by the order of the Subordinate Judge insisting on the arbitration and on payment of Rs. 50 by the plaintiff the latter has applied in revision to this Court.

(3.) We are of opinion that the order of the learned Subordinate Judge cannot be sustained. That a Court can appoint an arbitrator in certain circumstances is laid down by Sch. 2, Rule 5, but this can only be done after certain formalities have been gone through by the party desirous of continuing the arbitration. Rule 5 provides: Where the parties cannot agree within a reasonable time with respect to the appointment of an arbitrator, or the person appointed refuses to accept the office of arbitrator... any party may serve the other party or the arbitrators, as the case may be, with a written notice to appoint an arbitrator or.... If, within seven clear days after such notice has been served or such further time as the Court may in each case allow, no arbitrator... is appointed... the Court may, on application by the party who gave the notice, and after giving the other party an opportunity of being heard, appoint an arbitrator... or make an order superseding the arbitration, and in such case shall proceed with the suit.