1. This is an application in revision under Section 115, Civil P.C. The applicant Ganga Prasad Singh instituted a suit in the Revenue Court for the eject-merit of the opposite party Thakur Bindeshwari Singh upon the allegation that the latter was his tenant. The defence was that Thakur Bindeshwari Singh was a mortgagee with possession. While the suit was pending in the Revenue Court, the parties went to arbitration without the intervention of any Court. One of the terms of their agreement was that the award would be effective whatever might be the decision of the Be venue Court in the ejectment suit. The arbitrators joaade an award that Thakur Bindeshwari Singh was a mortgagee in possession. An application was made to the Civil Court that the award should be filed. An objection was taken that the Court had no jurisdiction but that objection was overruled and an order was passed that the award should be filed. Thereafter a decree was passed on the basis of the award.
2. The applicant had a right to institute an appeal under the provisions of Section 104, Civil P.C., against the order of the Civil Court directing that the award should be filed but he did not appeal. He has made this application in revision instead. The argument is that the learned Munsif had no right to receive the award and direct that it should be filed because a suit was pending in the Revenue Court and there should have been no reference to arbitration without the consent of the Court. We have examined the provisions of Para. 20 of Schedule 2, Civil P.C., and we can find nothing in them which suggests that it is only persons who are not parties to a litigation who can agree to refer their differences to arbitration. We have been referred to a decision of the Calcutta High Court in Amar Chand v. Banwari Lal (1922) 9 A.I.R. Cal. 404 in which it was held that arbitration could not be resorted to in such a case. It was also held that an agreement to refer, and an award following upon that agreement would not be tantamount to the adjustment of a suit under the provisions of Order 23, Rule 2, Civil P.C. In this Court it has however been held to the contrary that an agreement to refer, and an award would amount to an adjustment of the suit. The question before us is whether the learned Munsif had jurisdiction to pass an order for filing the award and to pass a decree thereon. He was presented with an award declaring that Thakur Bindeshwari Singh was a mortgagee. On the face of it that was an award dealing with a matter in which he had jurisdiction. It may be that the terms of Section 10, Civil P.C., might apply to an application to file an award where a suit is already pending about the matter with which the award deals, but no application was made to the learned Munsif to stay his proceedings under the provisions of that section.
3. On the face of it we see no reason for holding that the learned Munsif had no jurisdiction to deal with the application that the award should be filed and that a decree should be passed in accordance with it. We should in any case be reluctant to interfere when the applicant had a remedy open to him by way of appeal which he failed to utilise. We reject this application with costs.