Sulaiman, Ag. C.J.
1. This is an application in revision from an order of the lower appellate Court upholding the order of the first Court filing an award which had been made out of Court. A registered agreement referring the disputes between the parties was executed on 31st May 1929 and under it five persons were appointed as arbitrators. A meeting' was convened and notices to all the arbitrators were given, but one of the arbitrators named Sumat Prasad was not present. Both the Courts below have found that the parties agreed that the remaining four arbitrators should proceed with the case and dispose of the matter. The statements of the parties were taken down and evidence was recorded and an award was delivered by the four arbitrators. It was unanimous.
2. An application was then made in the Court of the Munsif by the plaintiff for the filing of the award. The defendant objected that the absence of one of the arbitrators was fatal to the award and made it invalid. He further pleaded that the arbitrators had wrongly decided a matter which was outside the scope of the reference. The learned Munsif overruled this objection and ordered the award to be filed. That order has been upheld by the learned Subordinate Judge.
3. In revision it is first contended before us that the absence of one of the arbitrators, Sumat Prasad, made the whole proceedings irregular and illegal and the award was not capable of being filed at all. The Courts below have relied on the case of Ramnath Misra v. Ram Ranjan Misra A.I.R. 1922 Cal. 181, in which it was held that if a party to an arbitration proceeding fails to take an objection to the absence of one out of several arbitrators he will be deemed to have waived his right to take objection to the whole of the irregularity caused thereby and the award must be filed. The judgment however does not show that the agreement in that case was a registered agreement; nor is there any reference in that judgment to proviso (4), Section 92. Under that proviso the existence of any distinct subsequent oral agreement to modify a contract which is evidenced by a registered document cannot be shown.
4. It seems to us that the oral agreement of the parties that only four out of the five arbitrators should proceed with and decide the disputes could not legally have the effect of modifying the previous registered agreement of reference to arbitration so as to make the award by four only out of the five arbitrators perfectly regular. There can however be no doubt that the defendant-applicant himself agreed to this procedure and requested the four arbitrators to proceed with the inquiry in the absence of the fifth arbitrator. As in a revision we are not bound to interfere we think that this is not a fit case for us to exercise our discretion in favour of the defendant who himself agreed to such a procedure.
5. The next point urged is that the Courts below had no jurisdiction whatsoever to delete a portion of the award. It is urged that the only two courses open to a Court in the case of an award which has been delivered out of a Court is either to Order it to be filed in its entirety or to reject it.
6. This point however is covered by authority which is binding upon us. The language of Section 526, Act 14 of 1882, was similar to that of Rule 21, Section 2, Civil P.C, and required that if no ground such as was mentioned in the earlier sections could be shown against the award the Court should order it to be filed. Nevertheless their Lordships of the Privy Council in the case of Buta v. Municipal Committee of Lahore  29 Cal. 854 (at p. 869) observed that a great deal of the technical argument with regard to the validity of the award was disposed of as that portion of the award which related to the measurements of the work done and the rates paid was clearly separable from that portion of the award which went beyond the strict terms of the agreement of reference. Their Lordships remarked that any faulty direction the arbitrators might have given in excess of their authority might be treated as null,
7. In a subsequent case which arose under the new Civil Procedure Code, namely, 'Amir Begam v. Badruddin Husain A.I.R. 1914 P.C. 105, Itheir Lordships at pp. 341 and 342 (of 36 All.), pointed out that a matter clearly outside the power of the arbitrator would render his award invalid, unless that portion of his award was separable from the rest. In that case their Lordships found no difficulty whatever in separating that [portion of the award from the rest and remarked:
It is well recognized law that when a separable portion of an award is bad, the remainder of the award, if good, can be maintained.
8. Their Lordships referred to paras. 14 and 15, Section 2 and upheld the good portion of the award, although that also was a case where an award had been delivered out of Court.
9. These are authoritative pronouncements which are clearly binding upon us. We must, accordingly, overrule the objection.
10. The application is dismissed with costs.