SHARAFAT ALI Vs. MTBHAGWATI

JUDGEMENT

(1.) This is an application in revision from an order directing a decree to be prepared in terms of the award and exempting the applicant. The applicant, Sharafat Ali, was a co-judgment-debtor with Jagpal, against whom Hamid Uddin had obtained a money decree. Certain property was attached in execution of that decree, and Mt. Bhagwati objected on the ground that it was her property and not of Jagpal. Her objection was disallowed and she instituted the suit, out of which this revision has arisen, for a declaration that the property was her property. She impleaded the decree-holder, judgment-debtor Jagpal and the Official Receiver of the estate; and she also impleaded Sharafat Ali. Sharafat Ali did not put in any appearance. The parties before the Court referred the dispute to arbitration, and an award was delivered under which it was held that the property did belong to Mi. Bhagwati. The Court below has passed decree in terms of the award, and has exempted Sharafat Ali.

(2.) The applicant contends before us that reference to arbitration was invalid. The first objection raised here, which was not taken in the Court below, is that the application for reference to arbitration was not signed by the decree-holder. There is no suggestion that the decree-holder had not consented to it, and it is patent that he appeared before the arbitrator. The omission of the signature caused no defect in the application, as para. 1, sub-para. 2, Sch. 2 does not require the application to be actually signed: Umed Singh V. Sobhag Mal A.I.R. 1915 P.C. 79.

(3.) It is also clear that, if Sharafat Ali had been a party interested in the matter in difference, which was referred to the arbitrator, the mere fact that he had not put in appearance and had not contested the suit would not have cured the defect. I do not think that an interested party would cease to be a party within the meaning of this paragraph merely because he did not put in an appearance and file a written statement. If the plaintiff discloses that he is not merely a pro forma defendant, he should be joined in the application, for it is obvious that the suit cannot be determined by means of the award as between some of the parties and on its merit by the Court itself as against the others. The non-appearance does not in any way involve a confession of judgment.