KEDAR NATH SAHU Vs. BASANT LAL SAHU

JUDGEMENT

(1.) These are two connected appeals from a decree of the learned Sub-ordinate Judge of Muzaffarpur dismissing the plaintiff's claim for a declaration that a certain award and a final partition decree based upon it is not binding against the plaintiff- appellant.

(2.) First Appeal No. 182 of 1937 is an appeal brought by the unsuccessful plaintiff, whereas First Appeal No. 190 of 1937 has been preferred by defendants 2 to 4. As will appear hereafter, it is clear that these defendants cannot challenge the decree of the Court below, and Mr. De who has appeared on their behalf has asked for permission to withdraw the appeal. In the circumstances, I think it is right that this appeal should be withdrawn; but these defendants must pay to Basant Lal Sahu, defendant 1, the costs which the latter has incurred as a result of this appeal.

(3.) In the year 1929 Basant Lal Sahu, defendant 1, brought a partition suit No. 89 of 1929 against defendants 2 to 4, and the present plaintiff who was a minor represented by his guardian ad litem defendant 3. On 29 February 1932, a preliminary decree was passed and defendant 2, who was the karta of the joint family, was ordered to furnish a full account of his dealings with the family property. On 18 December 1934, during the pendency of the proceedings relating to the account which had been ordered, the parties agreed to refer the matter to arbitration and in due course a reference to arbitration was made by the Court. At this stage the present plaintiff, who was then a minor and a defendant, was represented, as I have stated, by defendant 3 as his guardian ad litem. No application was made on behalf of the present plaintiff to the Court for leave to refer the matter to arbitration. On 2 March, 1935, the appointed arbitrator made his award. Objections were preferred by various parties which were disposed of, and in due course a decree was passed in terms of the award. The suit out of which this appeal arises was brought by the plaintiff for a declaration that this award and the final decree, which is based upon it is null and void and not binding upon him. It was contended on behalf of the plaintiff that as the leave of the Court was not obtained by the guardian ad litem before agreeing to refer the matter to arbitration the whole of the proceedings thereafter were vitiated and in consequence the award and decree are a nullity. Defendants 2 to 4 did not file a written statement and have in fact appeared through counsel in this Court and supported the plaintiff's contention. Defendant 1 contested the suit in the Court below and urged that the omission to obtain the leave of the Court before agreeing to arbitration did not vitiate the proceedings.