1. This appeal is filed by some of the defendants in the Court below. The suit, out of which this appeal has arisen, was one for partition. On the 24th of January 1924, some of the parties and the counsel for others appeared before the learned Subordinate Judge and made a statement which is printed at page 31 of the record. They stated that they would accept the statement which the three pleaders of the Court whose names are mentioned, would make without taking oath. They agreed that if the pleaders were not uniform in the making of the statement, the statement of the majority would prevail. The pleaders were to decide all the points in dispute among the parties and were also to dispose of the question of costs. On this statement of parties being recorded, the learned Subordinate Judge referred the case to the three pleaders. The pleaders took time frequently and ultimately on the 9th of April, 1924, made an application to the Court saying that the statement they had intended to make was a long one and it would be much better if they filed a written statement. They accordingly on that very date filed a written statement, which is printed at pages 32 to 45 of the paper book. On this statement having been filed, the learned Subordinate Judge at once proceeded to decide the case in accordance with the statement. On the judgment being given a decree followed, and it is against this decree that an appeal has been filed.
2. It appears that some of the defendants on the 22nd of April 1924, filed what they call objections to the decision of the three pleaders. The Court treated the objections as applications for review and realized Court-fee stamp accordingly. Ultimately the applications were dismissed for default on the 13th of December 1924. In the meanwhile on the 19th of November 1924, this appeal had been filed. It is contended on behalf of the appellants that the whole proceeding in the Court below was in the nature of an arbitration; that the so-called written statement of the referees was nothing but an award, and, therefore, the Court was bound to give the appellants ten days' time to file objections to the award. It was argued in the alternative that if the application of the 24th of January 1924, together with the 'written statement' of the three pleaders be regarded as an 'adjustment of the suit,' then such an adjustment could not be accepted by the Court without the sanction of the Court to it.
3. On behalf of the respondents the learned Counsel argued that the proceedings in the Court below were neither an adjustment nor an arbitration, but it was something different altogether. He referred us to certain cases in which it appears that where the parties agreed to be bound by the statement of a certain third party, it was held that the statement should be accepted as binding on them, whether any oath was taken by the party making the statement or not. One of the cases is Muhammad Asghar Ali Khan v. Muhammad Imtiaz Ali  A. W. N. 200, another case is Himanchal Singh v. Jatwar Singh A.I.R. 1924 All. 570, Neither of these cases has any clear application to the facts before us. On our reading of Order 23, Rule 3 of the Code of Civil Procedure, we do not regard the whole procedure as an adjustment by the parties of their differences 'by the lawful agreement or compromise.' We understand that Rule 3 of Order 23 refers to cases where the parties themselves come to an agreement. It may be that they asked some third person to settle their difference, and on that person giving an opinion the parties accepted it as good enough for themselves. In such cases it is the unity of the minds of the parties that constitutes the adjustment. In the case before us the parties referred a very complicated suit partition to the decision of three gentlemen who had nothing whatsoever to do with the families of the parties. Their 'written statement' shows that they themselves regarded their function as those of arbitrators, for they say:
We had to decide the dispute of each party separately and to inspect and examine the bahis which took considerable time.
4. We are of opinion, therefore, that the whole proceeding was one of arbitration. The reference though oral was reduced into writing, and it was signed by, or on behalf of, all the parties. The award is in writing and is signed by the arbitrators.
5. That being so, the question is whether an appeal lies. In Tursi Ram v. Basdeo : AIR1926All567 decided by the present Bench, an award was made by certain arbitrators and on it being sent back to the arbitrators they refused to re-consider it. The learned Judge accepted the award although the arbitrators bad refused to reconsider it and made a decree on foot of that award. This Bench held that was an award the finality of which was not contemplated by law, Stress was laid especially on the language of Clause (2) of para. 16 of Sch. 2 Civil P. C. The same principle applies, and we are of opinion that the award in the present case is not final, it not having been pronounced in the circumstances mentioned in the Clause (1) of para. 16 of Sch. 2 of the Code of Civil Procedure.
6. There can be no doubt that the learned Subordinate Judge should have allowed the parties ten days time to object to the award. After considering the objections, if any, it was open to the learned Judge to accept the award if he saw no reason to remit it and then to make a decree on foot of the award. We must now direct the learned Subordinate Judge to take up the matter from the stage at which the case arrived properly.
7. We allow the appeal, set aside the decree of the Court below and remit the case to the learned Subordinate Judge with the direction that he should readmit the suit on its original number in the register and dispose of it according to law. Costs here and hitherto will abide the result.
8. I would only add that there is to my mind a striking difference between the phraseology of Order 23, Rule 3 and para. 1 of the Second Schedule relating to arbitration. Order 23, Rule 3, clearly and very strikingly deals with an agreement which has been arrived at, while the main agreement to be arrived at under the arbitration paragraph is an agreement which is to be arrived at in the future.