Lawrence Jenkins, K.C.I.E., C.J.
1. This is an application to us under Section 622 of the Code of Civil Procedure, whereby the applicant takes exception to a refusal on the part of the Subordinate Judge to file an award which had been presented to the Court for filing under Section 525 of the Code of Civil Procedure.
2. The first objection taken to this application is that the proper mode of proceeding is appeal and not under Section 622.
3. It is clear that there is a long established course of practice in accordance with which these matters come before the Court under Section 622.
4. We are bound by that practice and though it may be open to criticis.m, we do not think that this is a case where we should refer the matter to a Pull Bench to see whether we can depart from that practice.
5. Accordingly, we will deal with the matter under 622.
6. Now we come to the merits. On the application being heard by the Subordinate Judge, issues were framed in these terms: -
(1). Cannot the suit be maintained as the alleged award is not produced with the plaint ?
(2). Did the arbitrator, Mr. Chadrashankar Bhimanand, make an award as alleged by the plaintiff?
If so, whether it is incomplete and invalid and made without any inquiry and with a bias for the plaintiff as alleged by the defendant ?
(3). Cannot the award be ordered to be filed in this case ?
(4). What relief the plaintiff is entitled to ?
7. The first two issues were answered in favour of the plaintiff who is the applicant before us. But the Judge determined on the third issue that the award could not be ordered to be filed in the case. His reason for so determining was, first, that the arbitrator was about to go on a pilgrimage, secondly, that he consulted the father of the litigants and thirdly, that he had knowledge which ho did not disclose.
8. We have to consider under what part of Sections 520 and 521 of the Code of Civil Procedure these objections fall.
9. It is suggested to us, and we must say we think it is the only feasible suggestion, that the Judge considered that there was misconduct on the part of the arbitrator.
10. In the first place we cannot say that it is misconduct on the part of the arbitrator to contemplate a pilgrimage. So far as the consultation with the father is concerned there is no direct assertion of it to be found it the evidence, and it is denied in an affidavit which has since been put in by the arbitrator. So far as the knowledge of the arbitrator goes, this gentleman appears to have been chosen from his acquaintance with the family. But the ground on which we would interfere with the order of the learned Judge is that in determining the application adversely to the plaintiff on a point not raised in the issues, he, in our opinion, exercised his jurisdiction with material irregularity, and therefore, we think the application must succeed.
11. The rule must therefore be made absolute with costs and the case sent back to the Subordinate Judge in order that he may dispose of it according to law.