Lawrence Jenkins, K.C.I.E., C.J.
1. This is an application to us to set aside an order of the Subordinate Judge of Bijapur whereby he purported to dismiss suit No. 149 of 1903.
2. After that suit had been instituted, the parties to it are alleged by the plaintiff to have referred the differences between them to arbitration. It is said that an award was made and on the strength of that award, the plaintiff applied to the Court that it should be filed in Court.
3. The defendant apparently denied the award with the result that the Subordinate Judge declined to file the award and dismissed the suit No. 149 of 1903.
4. Chapter XXXVII of the Civil Procedure Code governs references to arbitration. It contemplates two classes of references : One by the parties to a suit who obtain an order from the Court for a reference to arbitration : The other when persons agree in writing that the difference between them shall be referred to arbitration.
5. It has been held by a Bench of this Court in Harivalabdas v. Utamchand ILR (1879) 4 Bom. 1 that parties to a suit as well as persons not engaged in litigation may agree to refer matters in dispute between them to private arbitration. There is a decision to the similar effect in the case of Sheo Dat v. Sheo Shankar Singh ILR (1904) All. 53.
6. But the mere fact that litigants may agree to a private arbitration, does not make that arbitration an arbitration in the suit unless there is an order of reference as contemplated by Section 506.
7. Now in this case there was no order of reference; so that the reference was governed by Sections 523 to 526 of the Civil Procedure Code.
8. Under those sections it was necessary for an application to be made as provided by Section 525.
9. It was not however open to the Court to treat the application as made in the suit; the application was completely foreign to the suit.
10. It follows, therefore, that the Court had no power on that application to dismiss the suit, which was not before it. To that extent, therefore, it is manifest that the Court has made an order which it had no jurisdiction to make; and, according to the rulings of this Court, the plaintiff is entitled to come before us under Section 622, Civil Procedure Code.
11. But the plaintiff's grievance does not rest there.
The Subordinate Judge appears to have thought that the mere contention by the defendants that there was no award precluded him from considering whether there was an award to be filed.
12. That was a view that at one time prevailed. But the recent decisions in Dhanjibhai v. Mathurbhai ILR (1903) 28 Bom. 287 and in Manilal v. Vanmalidas ILR (1905) 29 Bom. 621 show that view to be erroneous.
13. It is needless for us to do more than refer to those cases for the purpose of showing the extent to which it is obligatory on a Court, even when there is a denial of the award, to investigate and decide the question at issue between the parties.
14. Therefore, we must make the rule absolute, and, not only set aside the order dismissing the suit No. 149 of 1903 but also send back the case in order that the application of the plaintiff be restored to the file and the case decided by the lower Court on the merits.
15. Costs of this rule will be costs in the application to file the award.
16. The application by the plaintiff must be treated as one under Section 525, and the Court should deal with the case under that section and Section 526.