AHMAD NUR KHAN Vs. ABDUR RAHMAN KHAN

JUDGEMENT

(1.) This appeal has arisen out of proceedings which were taken in the court below under the provisions of paragraph 17, Clause 1, of the second schedule to the Code of Civil Procedure.

(2.) It seems that there was some dispute between the members of two families descended from two brothers, Bala Khan and Ahmad Nur Khan. A suit relating to this dispute was filed in court and while the suit was proceeding the parties executed an agreement on the 20th of March, 1915, agreeing to refer their dispute to the arbitration of Khan Bahadur Abdur Rahman Khan. The result of the execution of this agreement was that the suit was withdrawn and the arbitrator took upon himself the duty of investigating into and deciding the dispute between the parties. On various dates in the year 1916, the arbitrator examined witnesses and finally the case came up before him again on the 13th of March, 1917. On that date he was informed that one of the parties to the dispute, namely, Akhtar-ud- din Khan had died and it would appear that some application was made to him asking him to send notice to the legal representatives of Akhtar-ud-din before any further proceedings were taken. The arbitrator sent out some notices and on the 25 th of March, 1917, he put in writing a definite refusal to go on with the arbitration. He said that as one of the parties to the reference had died he had no legal authority to make the legal representatives of the deceased party parties to the proceedings. After this he returned to the parties their documents and nothing more was done. On the 2nd of November, 1917, the present plaintiff appellant filed this application under paragraph 17 of the second schedule of the Code of Civil Procedure asking that the agreement to refer to arbitration might be filed in court. In other words the intention of the appellant is that the court should order the arbitration proceedings to go on as before and should direct the arbitrator to carry out the settlement of this dispute.

(3.) The court below has dismissed the application. It is not necessary for us to examine the various reasons which the Subordinate Judge has given in support of his order. It is sufficient to refer to his finding on the third issue, namely, that by reason of the refusal of the arbitrator to act, the deed of reference has become unenforceable.