1. This is a defendants' appeal arising out of a suit under Section 44, Agra Tenancy Act. The plaintiff sought to eject the defendants from certain plots of land. The defendants in their defence pleaded that they were proprietors of these plots and not tenants. In these circumstances the revenue Court in which the suit was instituted referred an issue on the question of proprietary title to the civil Court under Section 271, Agra Tenancy Act. The record of the suit was submitted to the civil Court as directed by Section 271, Agra Tenancy Act. The parties thereupon presented a joint application to the Munsif in which they prayed that the matter in issue be referred to arbitration. The issue was referred to arbitration and in accordance with the provisions of Schedule 2, Civil P.C., arbitrators were appointed and award was pronounced. Objections to the award which was against the defendants were dismissed by the learned Munsif who accepted the award, decided the issue submitted to him in terms of the award and sent back the record with his finding to the Court of the Assistant Collector. The Assistant Collector accepting the finding decreed the suit. The defendants appealed to the District Judge on two grounds. Firstly, they challenged the decree of the Assistant Collector upon the ground that it had proceeded upon an invalid finding. It was contended that the Munsif had no jurisdiction to refer the issue submitted to him to arbitration and that therefore his finding based upon the arbitrators' award was invalid. The decree of the learned Assistant Collector which followed the finding of the learned Munsif based upon the award was consequently invalid. The appellants also objected to the decree of the Assistant Collector upon the further ground that the Assistant Collector had refused them leave to amend their written statement.
2. The District Judge rejected both contentions and dismissed the appeal. In second appeal in this Court the decision of the District Judge is challenged only upon the first ground, viz., that the finding of the Munsif, on which the revenue Court's decision is based, is invalid for the reason that the Munsif had no jurisdiction to refer to arbitration the issue referred by the revenue Court under Section 271, Agra Tenancy Act.
3. Section 271 provides:
(1) If (a) in any suit or application filed in a revenue Court against a person alleged to be the plaintiff's tenant or under Section 44, the defendant pleads that he is not a tenant, but has a proprietary right in the land, or (b) in any suit instituted under Chap. 14 the defendant pleads that the plaintiff has not got the proprietary right entitling him to institute the suit, or (c) in any suit instituted under Section 121 a dispute as to the proprietary right in the land in suit is raised, and such question of proprietary right has not been already determined by a Court of competent jurisdiction, the revenue Court shall frame an issue on the question of proprietary right and submit the record to the competent civil Court for the decision of that issue only.
For the appellants it was contended that the provisions of Schedule 2, Civil P.C., which relate to arbitration in a suit are not applicable to proceedings in a civil Court where an issue has been referred by the revenue Court under Section 271, Agra Tenancy Act. Paragraph 1 of Schedule 2 provides:
(1). Where in any suit all the parties interested agree that any matter in difference between them shall be referred to arbitration, they may at any time before judgment is pronounced, apply to the Court for an order of reference.
4. Paragraph 3 provides:
(1). The Court shall by order, refer to the arbitrator the matter in difference which he is required to determine, and shall fix such time as it thinks reasonable for the making of the award, and shall specify such time in the order. (2) Where a matter is referred to arbitration, the Court shall not, save in the manner and to the extent provided in this schedule, deal with such matter 'in the same suit.'
5. Paragraph 16 provides:
(1). Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration in manner aforesaid, and no application has been made to set aside the award, or the Court has refused such application, the Court shall, after the time for making such application has expired, proceed to pronounce judgment according to the award. (2) Upon the judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except in so far as the decree is in excess of, or not in accordance with the award.
6. It was urged on behalf of the appellants that the arbitration provisions of the Civil Procedure Code apply to proceedings in a suit and not to proceedings which are not proceedings in a suit such as for example, proceedings in the civil Court to which an issue has been referred under Section 271, Agra Tenancy Act. A suit was a proceeding, it was maintained, which commenced with the presentation of a plaint and for this proposition the appellants relied on the case in Hansraj Gupta v. Dehra Dun-Mussoorie Electric Tramway Co. Ltd. . In that case the Privy Council held that a suit was a proceeding which commenced with the presentation of a plaint. The question raised in the appeal before the Privy Council was as to whether an application by a liquidator under Section 186, Companies Act, was a suit within the meaning of Section 3, Limitation Act. The Board held that such an application was not a suit inasmuch as it had not commenced with the presentation of a plaint. Earned Counsel for the appellants maintained that the proceedings in the civil Court following the submission of the record under Section 271, Tenancy Act, by the revenue Court had not commenced with the presentation of a plaint. They were therefore not proceedings in the suit and consequently the Munsif had no jurisdiction to refer the issue submitted to him to arbitration. This contention in my judgment is unsound.
7. The provisions of Schedule 2, Civil P.C., clearly apply to applications in a suit. The application made to the Munsif to whom the issue of proprietary title had been referred praying that the issue be referred to arbitration was in my opinion an application in a suit. No doubt the suit was instituted in the revenue Court; nevertheless, the proceedings in the civil Court were not separate and independent proceedings. They were proceedings in the suit itself. In these proceedings, in fact, the main issue in the suit was decided. It was maintained for the appellants however that it was plain from the terms of Section 271, Agra Tenancy Act, that the Legislature had excluded the proceedings in the civil Court under that section from the operation of Schedule 2, Civil P.C. In this connexion counsel relied upon the terms of Section 264 of the Act. Section 264 inter alia provides that
the provisions of the Civil Procedure Code shall not apply to provisions inconsistent with anything in the Agra Tenancy Act.
8. Section 271, it was urged, specifically directed that the issue submitted by the revenue Court should be decided by the Judge of that Court himself and that therefore the arbitration provisions of the Civil Procedure Code were inconsistent with the provisions of that section. The terms of Section 271 do not support this contention. The section directs that
the revenue Court shall frame an issue on the question of proprietary title and submit the record to the competent civil Court for the decision of that issue only.
9. There is nothing in my view in this provision from which it can be inferred that the Legislature intended that the decision of the civil Court should not proceed upon an arbitration award. Where there has been a reference to arbitration and the award has been accepted, the decision in the suit is the decision of the Court, notwithstanding the fact that the Judge himself is not the person who has decided the question in issue between the parties. It may be observed in this connexion that the provisions of Order 20, Civil P.C., governing the delivery of judgments and the granting of decrees, etc. relate, just as clearly as Section 271, Agra Tenancy Act, to judgments and decrees of the Court. The provisions of Schedule 2 of the Code however are without doubt applicable to proceedings in the Courts and decisions based upon arbitration awards are decisions of the Courts.
10. It was further maintained for the appellants that on the principle of delegatus non potest delegare the Munsif had no jurisdiction to refer the issue submitted to him to arbitration. In support of this contention reliance was placed on Nand Ram v. Fakir Chand ('85) 7 All. 523. In that case a Bench of this Court decided that a Court to which an issue had been referred under Order 41, Rule 25 which corresponds to Section 566 of the old Civil P.C., had no jurisdiction to refer an issue to arbitration. In my opinion, this is a somewhat doubtful decision, but it is not necessary in the present appeal to consider the question therein decided. It is sufficient to point out that there is no delegation by the revenue Court under Section 271, Agra Tenancy Act. The provisions in regard to reference of an issue to the civil Court are mandatory. The revenue Court has no discretion in the matter. The Legislature has in fact appointed the civil Court as the forum to which questions of proprietary title must be taken. In so far as this issue is concerned, in short, the civil Court is a Court of original jurisdiction, and in disposing of the issue that Court is not exercising an authority delegated by the revenue Court.
11. The appellants further contended that 'Court' referred to in the provisions of Schedule 2, Civil P.C., was the Court seised of the suit. The revenue Court, originally, in the present appeal was the Court which was seised of the suit and therefore it was urged the arbitration provisions were not applicable. Learned Counsel for the appellants particularly relied upon Para. 16(2) of Schedule 2 which provides that upon a judgment following an award 'a decree shall follow.' It was contended specially that the decree must be the decree of the Court which referred the issue to arbitration. Upon a consideration of the terms of Section 271 however I am satisfied that the civil Court was in fact seised of the suit. The section directs that the record shall be submitted to the civil Court after an issue is framed. When the record has been received by the civil Court it is clear in my opinion that the suit is pending in that Court. Where there is a question of proprietary title in a suit under Section 44, Agra Tenancy Act, there is a divided jurisdiction. The revenue Court may not determine the issue of proprietary title. That issue is reserved for the civil Court. So far as that issue is concerned therefore after the record has been sent to the civil Court that Court is seised of the suit. It is to be observed further that Para. 16(2) of Schedule 2 does not provide that the decree which is to follow upon the judgment must be the decree of the Court which granted the application to refer an issue to arbitration. The Court which referred the issue to arbitration under the provisions of this paragraph 'shall proceed to pronounce the judgment according to the award.' The paragraph does not direct that the Court shall thereafter pass a decree in accordance with the judgment. It provides that 'a decree shall follow.'
12. In my judgment there is nothing in the provisions of Schedule 2 which would justify the inference that these provisions do not apply to proceedings in civil Courts under Section 271, Agra Tenancy Act. It was contended by the respondent that even if in terms the provisions of Schedule 2, Civil P.C., did not apply to proceedings in the civil Court under Section 271, Agra Tenancy Act, these provisions were made applicable by Section 141 of the Code. Section 141 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.
13. It was urged that the proceedings in the civil Court under Section 271, Agra Tenancy Act, were 'proceedings in a Court of civil jurisdiction' and that therefore Schedule 2 was applicable thereto. In my judgment if the provisions of Schedule 2 are not by the terms of these provisions applicable to proceedings in the civil Courts under Section 271, Agra Tenancy Act, they are certainly made applicable by Section 141, of the Code. Section 141 refers to all proceedings in any Court of civil jurisdiction, and the proceedings in the civil Court after the record had been sent to that Court by the revenue Court in accordance with Section 271, Agra Tenancy Act, are undoubtedly proceedings in a Court of civil jurisdiction.
14. It was contended for the appellants however that Section 141 referred only to 'original proceedings' and that, inasmuch as the proceedings in the civil Court on the reference of an issue by the revenue Court were not original proceedings Section 141 had no application. This argument was based upon a decision of the Privy Council in 17 ALL 1068 and certain decisions which purport to follow it. Reference in particular was made to the case in Sarat Krshna Bose v. Bisheshwar Mitra : AIR1927Cal534 . In my opinion the decision of the Privy Council in Thakur Prasad v. Fakirullah ('95) 17 All. 106 does not support the appellants' argument and it appears to me that the decisions. in Sarat Krshna Bose v. Bisheshwar Mitra : AIR1927Cal534 and in the other cases to which we were referred in which the same view of the law was taken proceed on not only a misinterpretation but on a misreading of the decision of the Privy Council. In Thakur Prasad v. Fakirullah ('95) 17 All. 106 the Privy Council decided that Section 647, Civil P.C. of 1882, which corresponds to Section 141 of the Code, 1908, did not make Section 373 of the older Code applicable to execution proceedings. The facts of the case were that an appellant first applied for execution of his decree on 28th August 1885. He did not actually prosecute that application and on 5th January 1886 his pleader stated that the case might be struck off the list of pending cases 'for the present.' An order was accordingly made striking the case off the list for default.' On 24th August 1888 the applicant made a second application. This was within three years from the date of his first application and was in good time if the period of limitation was to be reckoned from that time but out of time if the first application was to be treated as a nullity because it had been struck off the list.
15. By the Civil Procedure Code of 1882 it was provided under Section 373 that if a plain, tiff withdraws from a suit or abandons part of his claim without the permission of the Court to bring a fresh suit he shall be precluded from bringing a fresh suit for the same matter or in respect of the same part. By Section 647 of the same Code it was enacted that the procedure therein prescribed should be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction other than suits and appeals. The Board held that the provisions of Section 373 were not made applicable to proceedings in execution by virtue of Section 647. In the course of the judgment of the Board it is observed:
It is not suggested that Section 373, Civil P.C., would by its own force apply to execution proceedings. The suggestion is that it is applied by force of Section 647. But the whole of Chap. 19 of the Code consisting of 121 sections is devoted to the procedure in execution and it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable, by saying in general terms that the procedure for suits should be followed as far as applicable. Their. Lordships think that the proceedings spoken of in Section 647 include original matters in the nature of suits such as proceedings in probates, guardianship and so forth and do not exclude executions.
16. It is to be remarked that the Board's decision is confined to the question as to whether by virtue of Section 647, Section 373 is made applicable to proceedings in execution. Their Lordships decided that it was not. The Board did not decide however that Section 647 did not apply to proceedings in execution. It is further to be observed that the Board did not purport to give an exhaustive list of proceedings to which Section 647 applied. Nevertheless in the later cases to which we were referred, notably in Sarat Krshna Bose v. Bisheshwar Mitra : AIR1927Cal534 , referred to above, and Basaratulla Mean v. Reazuddin Mean ('26) 13 A.I.R. 1926 Cal. 773, it was assumed that the Board had decided that Section 647 did not apply to execution proceedings and that the Board did give an exhaustive list of the proceedings to which the section did apply which list could be extended only to proceedings ejusdem generis. In Sarat Krshna Bose v. Bisheshwar Mitra : AIR1927Cal534 , for example, Mukerji J. in interpreting the Privy Council decision observed:
Their Lordships' decision makes it perfectly plain that this section does not apply to applications for execution, but only to original matters in the nature of suits such as proceedings in probates, guardianship and so forth.
17. The Board did not however decide that Section 647 applied only to such proceedings. In short, their Lordships observed that Section 647 includes original matters and not that it includes only original matters. It cannot be inferred from the decision of the Board, therefore, that Section 647, which corresponds to Section 141, Civil P.C. of 1908, did not apply to matters which were not original matters in the nature of proceedings in probates and guardianship and so forth. The decision of the Board is based upon the consideration that chap. 19 of the Code was a self-contained chapter of 121 sections devoted to procedure in execution and further that the provisions of Section 373, Civil P.C., were inapplicable to execution proceedings. Clearly the Board did not intend to decide that Section 647 had no application at all to execution proceedings. The provisions of the Code relating to the hearing of witnesses, taking of evidence, pronouncing of judgment and passing of decrees clearly applied to Chapter 19 of the Code but only in virtue to Section 847. In this connexion it is to be remarked that by an Amending Act in the year 1892 an explanation was added to Section 647 to the effect that this section was not applicable to execution proceedings. This explanation was omitted however from the Code of 1908 and it is permissible to conjecture that it was not repeated because it had been found in practice to be too wide in its operation. Interpreted literally, the explanation would have excluded the application of the general provisions of the Code above referred to execution proceedings.
18. Now, in the present case, there is no self-contained chapter relating to proceedings under Section 271, Agra Tenancy Act, comparable to Chap. 19 of the 1882 Code which corresponds to Order 21 of the 1908 Code. Furthermore, the arbitration proceedings of Schedule 2 are essentially applicable to the proceedings in the civil Court when an issue has been remitted under Section 271. The question of proprietary title raised between the parties in suits under Section 44, Agra Tenancy Act, is preeminently a question to which the arbitration provisions of Schedule 2 are easily applicable and appropriate. In short the grounds upon which the Privy Council decided the case reported in 17 ALL 1068 are absent in the present case.
19. Learned Counsel for the appellants contended finally that Schedule 2, Civil P.C., contained provisions which conferred substantive rights and that it was not concerned merely with the procedure and that therefore it was not covered by Section 141 which related only to procedure. This contention in my judgment is Unsound. Schedule 2 is procedure and nothing else but procedure. The right to arbitrate is not conferred by Schedule 2. This right is a common law-right which is part of the right of contract. Its existence is recognized in other statutes, for example, in Section 28, Contract Act. The exercise of the right is encouraged as a matter of policy by statute and by the Courts, and the provisions of Schedule 2, Civil P.C., merely provide for the manner in which after a suit has been instituted the right may be exercised. The right to arbitrate is a valuable right. In the exercise of this right parties to a dispute may, if they are so minded, avoid the expense and delay of protracted litigation. If the Legislature had intended that the right to arbitrate should be denied to parties to a dispute in which a reference has been made under Section 271, Agra Tenancy Act, it is reasonable to conclude that it would have made definite and specific provision to that effect. The Legislature would never have left the deprivation of this right to be inferred from certain provisions relating to procedure in which the right is not mentioned or even indirectly referred to. In the result I hold that the learned Munsif had jurisdiction to refer the issue submitted to him under Section 271, Agra Tenancy Act, to arbitration and that the finding based upon the award in the arbitration is a valid finding. In my judgment the appeal should be dismissed.
Ganga Nath, J.
20. I concur.
21. I agree in thinking that this appeal must be dismissed. The only question that has been argued before us is whether a civil Court, to which an 'issue on the question of proprietary right' has been submitted under Section 271(1), Agra Tenancy Act, 1926, can itself refer that issue to arbitration under para. 1 of Schedule 2, Civil P.C., 1908. As a result of the long and able arguments that have been addressed to us, I have come to the conclusion that the question is not as difficult as at first sight it would appear to be. The starting point of the enquiry is, of necessity, the true construction of Section 271, Agra Tenancy Act, 1926. If the effect of that section is that the Legislature has directed that 'the issue of the question of proprietary right' is to be 'decided,' and a 'finding' on it arrived at, by the particular civil Court to which it is submitted, and by no one else, in the sense that it is to be what I may call the 'personal' decision and the 'personal' finding of the Judge of the civil Court - then 'credit questio', because no provision of the Civil Procedure Code, 1908, could override such a statutory direction : see Section 264(a) Agra Tenancy Act, 1906 and Section 4, Civil P.C., 1908. If, on the other hand, Section 271, Agra Tenancy Act, 1906, contains, on its true construction, no such direction, then it will be open to us to consider to what extent, if at all, the procedure of Schedule 2, Civil P.C., is in fact available to the parties to an issue submitted to the civil Court under Section 271 of the Act. I think that it is right to approach the matter in this way because it seems to be the logical way to deal with it. Section 271, Agra Tenancy Act, 1926, so far as it is relevant, runs thus:
271 (1). If such...question of proprietary right has not been already determined by a Court of competent jurisdiction, the revenue Court shall frame an issue on the question of proprietary right and submit the record to the competent civil Court for the decision of that issue only.... (2) The civil Court, after refraining the issue if necessary, shall decide that issue only and return the record together with its finding on that issue to the revenue Court which submitted it.
22. Those, I think, are the relevant parts of Section 271. What is said on behalf of the appellants is that the language of Sub-section (2), and particularly the words 'shall...return...its finding,' require that the 'decision' and the 'finding' shall be what I have referred to above as being the 'personal' decision and finding of the civil Court, and not a decision or finding which is merely adopted from some one else. The argument is an attractive one and has caused me some slight difficulty, but I am inclined to think that that is not the real meaning of the language used. The primary provision for the disposal of the issue is the one contained in Sub-section (1). It is that the revenue Court is to 'submit the record to the competent civil Court for the decision of that issue only.' It is, to my mind, significant that it does not say that the decision is necessarily to be the decision of the civil Court itself. There is nothing personal about it. It is submitted to the civil Court merely 'for the decision of that issue.' And, so far as Sub-section (1) goes, I think that its provisions will be fully complied with, if the decision is arrived at by any of those procedural processes which under the Civil Procedure Code are applicable in the normal way to issues pending in a civil Court. It seems to me that the issue will have been decided in the civil Court to which it is submitted, if it is decided in accordance with the award of an arbitrator under Schedule 2 to the Code just as much as if it is decided as the result of a trial in Court. So far, therefore, as Sub-section (1) of Section 271, Agra Tenancy Act, is concerned there is nothing in it which, in my opinion, requires the 'personal' decision of the civil Court. Then comes Sub-section (2) which requires that
the civil Court...shall decide that issue only and return...its finding on that issue to the revenue Court....
23. In view of the language of Sub-section (1), I think it would be reading too much into Sub-section (2) to construe it as meaning that the 'decision' and the 'finding' must be the personal decision and finding of the Judge of the civil Court. It is true that the sub-section uses the words 'shall decide' and 'its finding,' but I do not think that a decision or finding is any the less a decision or finding of a particular Court because, in arriving at it, that Court has adopted a certain form of procedure which the Civil Procedure Code gives the parties a right to have resort to in any suit or other proceedings pending before it. That, of course, touches on the second of the questions which will arise and which I intend to deal with later. I find a good deal of support for this view from Order 20, Rule 5 of Schedule 1, Civil P.C., 1908, itself. Order 20 is the Order which says how a Court which is seized of a suit is to proceed; and, by Rule 5, where issues have been framed, it has to state 'its finding or decision' - the same words, be it observed, as are to be found in Section 271(2), Agra Tenancy Act, 1926. And yet those words, notwithstanding Section 4 of the Code, afford not the least obstacle to the application to the issues in a suit of the arbitration provisions of Schedule 2. The words 'its finding' and 'its decision' obviously do not mean in Order 20, Rule 5 that the 'finding' and 'decision' of the Court has to be its personal finding and decision. I have difficulty therefore in seeing why, in Section 271(2), Agra Tenancy Act, 1926, they should be used in any stricter sense. For these reasons, I think that upon its true construction there is nothing in Section 271, Agra Tenancy Act, 1926, which makes it intrinsically impossible to apply to an issue submitted to a civil Court under it the procedure of arbitration sanctioned by the Civil Procedure Code.
24. If therefore it is open - as I have said I think it is - to us to consider the question, the next, and only remaining, matter to consider is whether the provisions of Schedule 2, Civil P.C., 1908, did in fact apply to an issue submitted by a revenue Court to a civil Court under Section 271, Agra Tenancy Act, 1926. But before dealing with that question, I desire to refer shortly to a decision of two Judges of this Court which has, in part, given rise to this reference. The case is Nand Ram v. Fakir Chand ('85) 7 All. 523. The matter arose in that case out of the submission of certain issues by a District Judge to a subordinate Judge under Section 566, Civil P.C., 1882 - now Order 41, Rule 25 of Schedule I, Civil P.C., 1908. To that extent there may be some difference between that case and the one before us, though I do not myself perceive it. The question was whether it was open to the subordinate Judge to refer the issue remitted to him to arbitration - the same question as in the present case. It was held that it was not. The learned Judge who delivered the longer of the two judgments puts it upon the principle that it is not open to a Court to which jurisdiction has been delegated itself to delegate it.
25. But, with great respect, I venture to doubt, at any rate in the case of an issue submitted under Section 271 of the Agra Tenancy Act, 1926, whether any case of delegation arises. The jurisdiction which the civil Court exercises in consequence of that section is not delegated to it from any other Court. It is an original statutory jurisdiction to try a particular issue. The civil Court is the only Court that has that jurisdiction. All that really happens is that the record is received from another Court. But that is not 'delegation' of jurisdiction. Nor do I really think that the application of the arbitration provisions of Schedule 2, Civil P.C., is 'delegation' either, except in the very loosest sense. It, again, is merely the exercise of a right to obtain a decision in a particular way. The arbitrators do not decide the matter 'for' the Judge, because, once an application has been made to refer a matter to arbitration under Schedule 2 (assuming it applies), the Judge has lost, his jurisdiction altogether, except so far as he has ultimately to pass a judgment giving effect to the arbitration. I think therefore that it is a misuse of language, at any rate in the case before us, to regard the matter as one of 'delegation' at all. The other of the learned Judges who dealt with the case to which I am now referring put it very briefly on the ground, as I read it, that the Judge's jurisdiction was limited by Section 56, Civil P.C., 1882, to deciding the issue remitted to him and extended to nothing else. I desire to say nothing here about the true construction of Order 41, Rule 25, as it does not arise. But, in the present case, as I have already pointed out, I do not take the view that the jurisdiction of the civil Court under Section 271, Agra Tenancy Act, is limited in the same way as Oldfield J. held the jurisdiction of the subordinate Judge to be limited in Nand Ram v. Fakir Chand ('85) 7 All. 523 under Section 566 of the Code of 1882. Upon the same grounds also, I am prepared to distinguish Risal Singh v. Bhola Ram ('06) 1906 A.W.N. 221, which is also cited in the order of reference to us.
26. Having arrived at that point, I think that nine-tenth of the difficulty in the case is overcome. It remains to consider whether in fact there is anything in the Act or the Code which permitted resort to be had by the parties, on an issue submitted under Section 271, Agra Tenancy Act, 1926, to arbitration under Schedule 2, Civil P.C., 1908. In my judgment, the effect of Section 141, Civil P.C., 1908, is to make available to the parties in such a case the provisions of Schedule 2 and to render a 'decision' and 'finding' of a civil Court referred to in Section 271, Agra Tenancy Act, arrived at and 'returned' in pursuance of such an arbitration, a valid decision, finding and return. For myself, I prefer to put this upon the footing of the applicability of Section 141 of the Code rather than upon the footing that, in the circumstances of the submission of an issue under Section 271, Agra Tenancy Act, the 'suit' itself can be said to be pending in two Courts at once and that, therefore, para. 1 of Schedule 2, Civil P.C., directly applies. If I understand it rightly, that is one of the arguments addressed to us by Mr. Pathak from which he draws the conclusion that the Court referred to in that section is, or may be, the civil Court to which the issue is remitted. I do not wish to express a concluded view upon that proposition, which, I think, as a matter of construction of the section, presents considerable difficulty and is not necessary to the decision of this appeal. I prefer to found myself upon the direct application of Section 141, Civil P.C., 1908, rather than upon the immediate application of para. 1 of Schedule 2 or upon an assumption, which is to my mind before, that, after proceedings have been commenced in any Court, there exists, under the Contract Act or otherwise, anything in the nature of a common law right in the parties to go to arbitration. Section 141, Civil P.C., 1908, is in these terms:
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.
27. We have to deal with the section as it stands and the only relevance of the history of it is in order to understand the authorities which have from time to time construed it. Nor do I think that we are in this appeal in the least concerned with those numerous authorities, as such, in which it seems to have been determined that execution proceedings are not 'proceedings' within the meaning of Section 141. I should myself have entertained no doubt that, according to any ordinary use of language, an issue submitted by a revenue Court to a civil Court under Section 271, Agra Tenancy Act, 1926, was, once it had been so submitted, a 'proceeding' in a 'Court of civil jurisdiction.' If it is not a proceeding, what is it? I do not think it is a 'suit.' If it had been, para. 1, Schedule 2 would have directly applied. The word 'proceedings' in the section is not in any way limited or restricted and, but for certain dicta of their Lordships of the Judicial Committee of the Privy Council, I should have been content to assume that an issue of the kind we have before us was a 'proceeding in a Court of civil jurisdiction.' The passage which has raised the argument upon which Mr. Banerji relies is to be found in Thakur Prasad v. Fakirullah ('95) 17 All. 106 at p. 111 where in reference to Section 647, Civil P.C. of 1892, their Lordships say:
Their Lordships think that the proceedings spoken of in Section 647 include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions.
28. A good deal of use of this passage has been made, of which a decision of a Bench of two Judges of the Calcutta High Court is an example. The learned Judges in Sarat Krshna Bose v. Bisheshwar Mitra : AIR1927Cal534 , in dealing with a question whether Section 141 was applicable to a proceeding for restoration of a suit under Order 9, Rule 9 say:
An elaborate research into the history of Section 141 and an exhaustive analysis of the case law bearing on it will bo found in the recent judgment of Page J., in Basaratulla Mean v. Reazuddin Mean ('26) 13 A.I.R. 1926 Cal. 773. Now amidst the hopelessly conflicting mass of judicial decisions which have clustered round Section 141 and Section 647 which stood in its place before, the solid bed-rock on which it is safe to take one's stand is the decision of the Judicial Committee in Thakur Prasad v. Fakirullah ('95) 17 All. 106. Their Lordships' decision makes it perfectly plain that the section does not apply to applications for execution, but only to 'original' matters in the nature of suits such as proceedings in probates, guardianships and 'so forth.' 'The expression 'so forth' must, in my opinion, be read as meaning proceedings ejusdem generis with the instances that precede it, and include such proceedings as in divorce, in insolvency, for succession certificates and the like and the expression 'original matters' in my opinion confirms that view as meaning matters which originate in themselves and not those which spring up from a suit or from some other proceedings or arise in connexion therewith.
29. With great respect I think that this passage may possibly find in the dictum of their Lordships of the Judicial Committee a good deal more than was intended by its authors. The word 'only' nowhere appears in the language used by their Lordships. They say merely that the proceedings referred to in Section 141 'include' the original matters which they specify. For myself, I doubt whether it was in their Lordships' minds to lay down that nothing that was not 'original' could possibly be included in the proceedings contemplated by Section 141 of the Code and I respectfully agree with the comment to the same effect which has been made by Sir George Knox in this Court in Khushalgir v. Gobindgir ('10) 6 A.L.J. 760. In any case, what they do say falls short, I think, of even a dictum that only 'original' matters fall within the 'proceedings' contemplated by the section. Even if, however, we had been bound to take the same view of the dictum of the Judicial Committee as the Calcutta High Court has taken of it, I should still have had no hesitation in holding that the issue of proprietary-right in this case before the civil Court was an 'original matter.' The issue in question started life as one of the issues involved in the suit in the revenue Court. That suit was unquestionably an 'original' suit and the issues in it were 'original' issues or matters. All that has happened is that one of the issues in that suit has, because of the law, had to be transferred - 'submitted' is the word used - to be heard in another Court - the Court. That issue has not changed its character on that account. It is the same issue that it was in the revenue Court, where it was an 'original' issue. It is, I think, still an 'original' issue in the civil Court and, a fortiori, it is an 'original' matter. I think the appellant is seeking in this connection to put upon the word 'original' a meaning connoting that it must arise in the same Court as that in which the suit originated. But that, in my view, is not the meaning of the word 'original' in this context.
30. I think, therefore, that the hearing of this issue in the civil Court was a 'proceeding' in the civil Court and, moreover, an 'original matter'. But then Mr. Banerji says that, even if it is, the provisions of Schedule 2 to the Code are not 'procedure' and cannot, therefore, be applied under Section 141. He says that the right to go to arbitration is a 'substantive right' and not a matter of procedure at all. I do not agree. Schedule 2 provides both a right and a method by which the trial of a suit is to proceed. It provides a means for the disposal of the suit. It indicates what course the Court is to take in certain events. All this is, to my mind, 'procedure' pure and simple and none the less so because the parties are given a statutory privilege of adopting it. There are many matters of procedure which constitute 'rights' as well - the right to deliver interrogatories, to obtain particulars of pleadings, to obtain and inspect documents, and to have discovery are all 'rights' as well as matters of procedure. Finally, it is suggested that, if all else fails, then it is not procedure 'provided in this Code',because, as I understand the argument, the procedure is to be found set out, not in the body of the Code or in the rules, but in a schedule. I hardly think that this need be seriously dealt with. Schedule 2 is part of the Code of Civil Procedure, being introduced by Section 89, and there is nothing in the definition of the word 'Code' in Section 2(1) which says otherwise. All that definition says is that the word 'Code' includes the rules.
31. There is one other matter which in deference to Mr. Banerji's careful argument, I desire to refer to. He says that, even if by virtue of Section 141, Schedule 2 would prima facie be applicable to the hearing of an issue in a civil Court of the kind we have here, it ought, in the special circumstances of this kind of case, to be held to be excluded by implication because it is wholly inappropriate to the procedure under Section 271, Agra Tenancy Act. That again, is an ingenious, but, I think false, argument. It rests on Para. 16, Schedule 2. That section provides (1) that the Court shall proceed to pronounce 'judgment' according to the award and (2) that the judgment shall be followed by a decree. 'What is said is that, if the provisions of Schedule 2, were applicable to an issue submitted to the civil Court under Section 271, Agra Tenancy Act, 1926, the proceedings would not result in a 'judgment' at all by the Court which receives the award nor, if it were, would that judgment be 'followed' by a decree of the Court that passed it. From this we are asked, I think, to conclude that there is such an inconsistency that the provisions of Schedule 2 must, notwithstanding Section 141, be excluded by necessary implication. It is true, I think, that Para. 16 of Schedule 2, had it been drafted with special reference to proceedings such as those we are considering, might have been differently worded. But I can on a reasonable construction of Section 16 see no real inconsistency. I do not think that there is any straining of the language in treating the 'judgment' referred to in the section as synonymous with the decision and finding which the civil Court is enjoined to return to the revenue Court under Section 271, Agra Tenancy Act, 1926, particularly having regard to the definition of 'judgment' given in Section 2(9) of the Code. And, if that be so, then a decree would in fact 'follow' the judgment. The section says neither that the decree shall follow it immediately nor that the decree shall be by the same Court as pronounces the judgment. The decree by the revenue Court which finally disposes of the proceedings will, I think, satisfy the section.
32. A final suggestion has been made that] the actual application for a reference to arbitration did not specify the matter to be arbitrated upon. It was, in fact, a carelessly drawn application. But up to this moment every one - not excluding the parties themselves and the arbitrators - has been perfectly well aware that it was the issue of proprietary right that was submitted to arbitration and that is what the arbitrators decided. This objection is taken here for the first time. It would, I think, be wrong of us to entertain it. For these reasons I think that the issue of proprietary right submitted to the civil Court was one which was capable of being submitted to arbitration under Schedule 2, Civil P.C. I think that, by virtue of Section 141, Schedule 2 to the Code did apply to this 'proceeding' in the civil Court and that the application for submission to arbitration was rightly made to, and granted by, the civil Court. It follows that I agree that this appeal should be dismissed.