1. [His Lordship after setting out the facts proceeded :] Two points are taken by the learned counsel on behalf of the appellant. The first is that there being a reference to arbitration by the parties and accepted by the Court, upon the terms of that reference, the Court was constituted as an umpire in the event of the arbitrators failing to agree. Therefore the decision of the learned Subordinate Judge of Sholapur was a decision of an umpire and no appeal from it was competent to the District Court. The second point is with regard to the merits of the case.
2. Now it is clear from Section 89 of the Civil Procedure Code that save in so far as is otherwise provided by the Indian Arbitration Act, 1899, or by any other law for the time being in force, all references to arbitration, whether by an order in a suit or otherwise, and all proceedings thereunder, shall be governed by the provisions contained in the Second Schedule to the Code. It is not argued that this reference is justified either by the Indian Arbitration Act or by any other law, but it is contended that the reference though made in execution proceedings is governed by the provisions of the Second Schedule to the Code, which deals with arbitration in general in pending suits and references made outside Courts. The question then is whether the present reference to arbitration will come under the Second Schedule. In support of his argument the learned counsel for the appellant relies on the provisions of Section 141 of the Civil Procedure Code. That section provides :-
The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
3. In my opinion the meaning of the section upon its clear terms is that the procedure to be followed in regard to suits under the Code is as far as possible to be followed in other original proceedings of the nature of suits, such as proceedings in probate, guardianship, under the Indian Trusts Act for the appointment of a trustee, Lunacy Act, etc. The section does not apply to proceedings in execution of a decree which are proceedings in the suit. Section 141 corresponds to the old Section 647 of the Code of 1882. There was a difference of opinion between the several High Courts in this country as to whether the old Section 647 applied to execution proceedings. It was held by the Allahabad and Bombay High Courts that the section applied to applications for execution. A contrary view was taken by the Calcutta High Court. Having regard to this conflict of opinions the Legislature amended Section 647 in 1892 by adding an Explanation which was in these terms :-
This section does not apply to applications for the execution of decrees which are proceedings in suits.
4. The result of this amendment was to supersede the view taken by this Court as regards the applicability of Section 141. Before the amendment, however, the same question arose before the Privy Council in the case of Fakir-ullah V. Thakur Prasad I.L.R. (1890) All. 179. and it was held by their Lordships of the Privy Council that Section 647 did not apply to applications for execution, but only to original matters in the nature of suits, such as proceedings in probate, guardianships and so forth. Apart from this, it seems to me that it is very difficult to hold that the provisions of the Second Schedule are applicable in applications for execution proceedings : for one thing it is impossible to apply some of the provisions in the Second Schedule, particularly those which provide for the acceptance of the award where no objection could be taken to it, or if taken has been overruled, and for the Court being bound thereupon to pass an award decree which would be capable of execution? I need not dilate upon the point, because the view which I am inclined to take has been taken by the Calcutta High Court in T. Wang v. Soan Wangdi I.L.R. (1924) Cal. 559. It seems to me, therefore, that the Subordinate Judge had no jurisdiction to accept the reference to arbitration and to make an order on it, and that the award if any made either by the arbitrators or by him as an umpire is illegal and without jurisdiction. The decision of the Subordinate Judge would then come under Section 47 of the Civil Procedure Code and would be appealable in the ordinary way. The learned Assistant Judge in appeal therefore was right in overruling the contention made on behalf of the plaintiff though upon a different ground.
5. [The judgment then dealt with the second point which referred to the facts of the case.]
6. The appeal is dismissed with costs.