R.N. Gurtu, J.
1. This was a suit by the plaintiffs against two defendants for a declaration that they were the owners in possession of the property described at the foot of the plaint under a sale deed dated 2-11-1931.
2. One of the defendants namely, Ram Anjor Singh, was a minor at the time of the suit. The plaintiffs had, therefore, to get a guardian ad litem appointed. An application was made proposing the mother as the guardian ad litem. She refused. Then another relation was proposed. He also refused and finally the plaintiffs moved that the court should appoint an advocate as the guardian of the said, minor. Accordingly, Sri Raj Bahadur Lal Vakil was appointed guardian.
After his appointment Sri Raj Bahadur Lal made an application for permission to refer the case to the arbitration of one Bhagauti Din Tewari. The court granted permission for the case to be referred. The other defendant Ram Hit Singh, was also a party to the reference. After the case had been referred to the arbitrator appointed and some adjournments had also been granted to the arbitrator, the minor made an application stating that he had received no notice and that his guardian ad litem had been appointed without his knowledge.
He prayed for the appointment of another guardian. On this application the court appointed another guardian this time the mother. Then the mother made an application to withdraw the suit from arbitration and this application was granted. Thereafter the suit proceeded as a contested suit and the trial court dismissed it.
3. There was an appeal which was also dismissed. The appellate court held that the reference to arbitration was void because the guardian ad litem was appointed without notice to the minor.
4. It is contended before me that once the case had been- referred to arbitration it could not be tried out as a contested suit and it is urged that the mere fact that a notice was not served on the minor before his guardian ad litem was appointed would not make the order of appointment of the guardian void.
5. Order 32, Rule 3 of the Civil Procedure Code no doubt requires that a notice should be given to the minor also, but it has been ruled in this Court that the absence of a notice to the minor is a mere irregularity and does not make the appointment of a guardian without due notice to the minor void. See the ruling reported in Sukha v. Lachmi Narain : AIR1928All621 .
6. I have been read out the application made by the minor. That application does not state that the conduct of the guardian ad litem in making a reference to arbitration is prejudicial. Moreover, in this case, the major member of the family, namely, the other defendant had also joined in the reference to arbitration. In the circumstances, it does not appear that the minor was in any way prejudiced by the conduct of his guardian ad litem. In all these circumstances, it is clear that the appointment of Sri Raj Bahadur Lal as guardian ad litem was not void and he was competent to refer the case to arbitration on behalf of the minor.
No provision of the Arbitration Act has been pointed out to me whereunder a party to an arbitration agreement can later withdraw from that agreement and reconfer a jurisdiction on the court to try out the suit. In the circumstances in my view the arbitrator alone could be said to be seized of the matter and it was incorrect for the court to assume jurisdiction to decide the points in controversy. Accordingly, it will be necessary to set aside the judgments and decrees of the two courts below and to direct the learned Munsif to send the case back to the arbitrator named.
7. It was urged that the plaintiffs should have challenged the order of the learned Munsif removing the vakil guardian and permitting the withdrawal of the reference to arbitration. In my view it was not necessary for the parties to move in revision and they were entitled to raise an objection in the appeal which they preferred from the decree of the trial court.
8. It has also been pointed out to me that during the pendency of this appeal the said minor Ram Anjor, died and his brother Ram Hit Singh, i.e. the other defendant to the agreement to refer the matter to arbitration was his sole heir. This further clears up the matter and there seems to be no reason why Ram Hit Singh should not be tied down to this agreement.
9. Accordingly, I allow this appeal set aside the judgments and decrees of the two courts below and direct the learned Munsif to send the case back to the arbitrator for decision according to law. Costs shall abide the result.