TARA PROSANNA BAL Vs. ASOKE PROSANNA BAL

JUDGEMENT

(1.) The facts on which this rule depends may be briefly stated thus: The plaintiffs who are the petitioners before this Court instituted a suit for partition. The parties to the partition proceedings agreed ultimately to settle their differences on certain terms which were embodied in a petition. That petition was filed in Court and, on the basis of that agreement a preliminary decree was passed on 17 September 1928 . The order runs as follows: Parties have filed a petition of compromise. Ordered that the suit be decreed in terms being in preliminary form and that the petition of compromise be made a part of the decree and that the case be put up for orders on 17 January 1929.

(2.) On 24 September 1928, the preliminary decree was signed and sealed. It is necessary to set forth some of the terms of the petition of compromise in order to understand the points raised in this rule. The first ten paragraphs of the petition of compromise adjusted the rights of the parties to the moveable and immovable properties which formed the subject-matter of partition and they also related to the adjustment of the claim for accounts Para. 11 and the subsequent paragraphs related to the procedure which was to be adopted for the purpose of working out the rights of the parties as agreed to and settled by the first ten paragraphs. Para. 11 stated that the division of the moveable and immovable properties with reference to which the parties had settled their rights in the earlier paragraphs of the petition of compromise was to be made by two arbitrators of the name of Babu Satya Ranjan Guha and Babu Sasi Kumar Bose, latter being a relation of the parties. It was also stated that the division was to be made within six months from the date of the compromise. It was further stated that whatever award the arbitrators might make would be binding on the parties. It was also recited in the petition that, in case there was a difference of opinion between the two arbitrators, the matter was to be referred to a third person as umpire and, if again there was difference of opinion between these three persons, the opinion of the majority would prevail. Para. 12 recited that, if the arbitrators were unable to finish their work within six months, it would be open to them to apply to the Court to have an extension of time. If for any reason, para. 13 recited, the arbitrators were unable or were unwilling to carry on the work of arbitration, then it would be open to the civil Court to appoint a commissioner for the purpose of effecting the partition of the divisible properties. It is not necessary to refer in detail to the subsequent paragraphs of the petition of compromise. It is sufficient to state that some of these provisions referred to the appointment of a common manager to carry on the management of the estate sought to be partitioned so long as the works of the arbitrators were not finished. There is nothing in this petition of compromise which suggests that the parties were to apply to the Court for a reference to arbitration, and, as a matter of fact, while this petition of compromise was made a part of the decree of Court, no orders were passed by the Court with reference to arbitration and that was done, it seems to me, for a very good reason because the petition did not refer to any application for arbitration nor was the Court's attention drawn by the advocates on both sides to the necessity of an order of reference to arbitration. The plaintiffs themselves apprehended that the petition of compromise was not sufficient in itself to show that there was a clause by which the parties agreed to apply to the Court for reference to arbitration; for, I find that on 27 November 1928, the plaintiffs put in a petition asking for a formal order of reference to arbitration. They stated in their petition that they had already appointed Babu Satya Ranjan Guha and Babu Sasi Kumar Bose as arbitrators by a solenama and that, therefore, it was necessary that the Court should direct a reference to the arbitrators to arbitrate; otherwise, technical and subtle difficulties might arise. This application, it is necessary to state, was made without notice to the other side the defendant opposite party, and was heard in his absence and the Court made this ex parte order: It seems that a formal order of reference should be drawn up and sent to the arbitrators so that no technical questions may arise in future.

(3.) As soon as the defendant came to know of this order, he moved the Court on 29th November 1928 and filed two petitions complaining of the illegality of the order of reference made on 27 November and pointed out in para. 3 of his petition that, as there was no stipulation in the petition of compromise to the effect that the parties were to apply to the Court with reference to arbitration, the Court was not right in making the reference. This application of the defendant was heard in the presence of both sides and the Court passed an order on 19 December 1928 revoking the reference to arbitration. This order forms the subject-matter of the present rule.