George Knox and Richards, JJ.
1. This was a suit to enforce a mortgage. The mortgage was made by one Kunjal Singh. He, his sons, grandsons and great-grandsons were all made parties to the original suit, and the plaintiff sought to obtain a decree against the joint ancestral property of the defendants. A joint written statement was filed on behalf of all the defendants by a pleader named Munna Lal. The suit was subsequently referred to arbitration, and an award, which we have no reason to think to be an unfair or unreasonable award, was made. It, however, appears that the original vakalat-namah given to Munna Lal was not signed by one of the defendants, Daryao Singh. The submission to arbitration was signed by three of the defendants, namely, Baljit Singh, Punni Singh and Tara Singh. Munna Lal purported to sign on behalf of the other defendants. An objection was taken to the award by two of the defendants, namely, Lochan Singh, and Hem Singh. The objections appear to have been frivolous. The objections were overruled by the Subordinate Judge, and a decree was passed on the award. Daryao Singh appealed, and the District Judge allowed his appeal and set aside the decree, on the ground that there was no 'reference by the parties to the suit on the application of the parties in person or by a pleader specially authorized in writing in that behalf.' It is admitted that Daryao Singh never executed the original vakalat-namah or the reference to arbitration and, accordingly, it is quite clear that unless Daryao Singh is estopped from denying the validity of the reference there was no reference by him within the meaning of Section 506 of the Code of Civil Procedure. We find no facts or circumstances which would enable us to say that the 'declaration, act or omission' of Daryao Singh estopped him from setting up the case he made in his appeal to the District Judge. The law provides the mode in which these references of suits to arbitration are to be carried out and it was the duty of the appellant to see that the submission to arbitration was in due form and binding on all the defendants. It is said that if Daryao Singh did not authorize Munna Lal to file the written statement, he admitted the plaintiff's claim, and, accordingly, that there was no 'difference' between him and the plaintiff, and that, therefore, he was not a necessary party to arbitration. In support of this the case of Pitam Mal v. Sadiq Ali (1898) I.L.R., 24 all., 229 has been cited. It was there contended that it was necessary for the validity of an award that all parties to the suit should be parties to the award. The Courts held that it was only necessary to have the parties to the suit parties to the award between whom the differences submitted to arbitration existed. The present case is clearly distinguishable. Here the plaintiff seeks to bind Daryao Singh by the award and by the decree which incorporates the award. He seeks to bind Daryao Singh as if he wore expressly a party to the award and the decree founded thereon. A second point was urged here by the appellant, namely, that the decree at the most should be set aside only as against Daryao Singh. We do not agree with this contention. The ground of the decree was the award, which award was founded on the reference, and unless the reference was valid under the provisions of Section 506 of the Code of Civil Procedure, the award and the decree were invalid, and, in our opinion, proceeded on a ground common to all the defendants.
2. The only remaining question to be dealt with is the question of costs. We find that all the defendants were members of a joint Hindu family. They were represented by a single pleader, Munna Lal, and Daryao Singh's father, Tara Singh, signed the vakalat-namah and also the reference. We strongly-suspect that Daryao Singh was fully aware of the proceedings. In fact it is hard to conceive how he can be ignorant of them. There is a great deal which induces us to think that this is the last attempt to get rid of what was really an honest award by Mr. Banerji. We dismiss the appeal and direct that the costs of all the parties represented here shall abide the decision of the case.