V.D. Bhargava, J.
1. This is an application in revision under Section 115, C. P. C.
2. The parties in this case referred the matter to arbitration and it was agreed that the arbitrator would have full power to take evidence of the parties or to decide in any manner that he liked after hearing the parties, and the parties would have no objection. It was further provided that the arbitrator shall be entitled to use his own personal knowledge or make enquiry or take evidence secretly or decide even without taking evidence.
3. The reference thus was in the widest possible terms.
4. Objection was taken on behalf of the plaintiff that he was not bound by this award because the arbitrator had relied on a certain report of an overseer. Both the Courts below have come to this finding that the report of the overseer was not admissible and, therefore the arbitrator judicially misconducted himself and on that ground they set aside the award. Aggrieved with that decision the defendant has come to this Court.
5. Learned counsel for the applicant argues that since the reference gave the power to the arbitrator to decide in any manner that be liked, and if he has acted on that report he has committed no judicial misconduct. In Husain Bakhsh v. Lachhman Das Mathra Das, 20 All LJ 125: (AIR 1922 All 69) (A), a Bench of this Court had occasion to consider a very similar case.
The misconduct alleged against the arbitrator in that case was that he had made private enquiries in the subject matter of the dispute behind the back of the parties and in that case the applicant in revision contended that the parties had expressly authorised the arbitrator to arrive at a decision either on his own personal knowledge or in whatever manner he thought proper. The bench held in that case,
'on an examination it becomes clear that this was so; the parties expressly stated as much when they certified before the trial Court their agreement to refer to arbitration.'
6. On that finding the bench came to this conclusion :
'In thus ignoring the terms of the agreement of reference the Court below has, in my opinion, acted illegally and with material irregularity; by so doing it has assumed jurisdiction about a suit which the parties had removed from its cognisance and made over, unconditionally, to the arbitration tribunal of their own choice. In my opinion the case falls within the revisional jurisdiction of this Court. I would, therefore, set aside the order complained of and send back the case to the Court below to have a decree prepared in accordance with the award.'
There would have been no difficulty in arriving at a decision in the light of the above bench decision of this Court. But in a Full Bench decision, Govind Das v. Mt. Indrawati : AIR1938All557 , it was held that an order superseding an arbitration or setting aside an award was not a case decided. At the time when that decision was given the arbitration proceedings were governed by the provisions of Schedule II of the Code of Civil Procedure, and when many of the orders passed in arbitration proceedings were not appealable.
After the coming into operation of Act 10 of 1940, Section 39 provides many of the orders against which an appeal lies and among them is an order setting aside an award. If an order has been made appealable, in my opinion, it would certainly amount to a case decided. I would be personally inclined to take the view that this could be revised. As there would be no right of appeal from my decision, this being only a revision, and as it involves an important, question of law, and the effect on the Full Bench decision of the coming into operation of Act 10 of 1940 has to be seen, I would refer this case to a bench of two Judges.
7. Let the papers of this case be put up before the Hon'ble the Chief Justice for constitution of a bench.