1. This is a civil revision from an order passed in appeal by the District Judge. It appears that the parties had agreed to refer their disputes to the arbitration of two arbitrators and one umpire. There was considerable delay in the proceedings of the arbitrators, and ultimately the applicants filed an application under Schedule 2, Rule 17 of the Civil Procedure Code, for the filing of the agreement of reference to arbitration. Notices were issued to the defendants to show cause why the agreement should not be filed, and on the 14th of July 1923 the Court passed an order under Rule 17 filing the agreement, and made an order of reference to the arbitrators appointed in accordance with the provisions of the agreement. An appeal was preferred to the District Judge from the order filing the agreement, and owing to the pendency of the appeal there was at first some delay in the proceedings. The record was not sent to the arbitrators for some time. It appears that subsequently the Court came to know that all the arbitrators were not willing to arbitrate, and it invited a list of the arbitrators from the plaintiffs. The arbitrators named by the plaintiffs were not acceptable to the defendants, and after hearing objections by both parties the Court appointed B. Raghubir Sahai as the sole arbitrator in the case. This order was made on 13th September 1923, This arbitrator did not make any award, and ultimately on 27th September 1923 the Court appointed the Government Pleader as the sole arbitrator. The Government Pleader made an award the very next day, but this award, on some ground not necessary to set forth here, was set aside. After this, in December, the Court again directed that the two arbitrators named in the agreement should be consulted as to whether they were willing to act or not with the Government Pleader as the umpire. The Court was informed that at least one of the two arbitrators was not willing to act. It then passed an order dated 24th October 1923 revoking the order of reference and dismissing the suit. It was against this order that an appeal was preferred to the District Judge, who has allowed it and remanded the case.
2. In revision two points have been urged before us. The first is that no appeal lay to the District Judge who had no jurisdiction to interfere in the case at all, and the second is that, even if an appeal lay to him his order should not be upheld, inasmuch as the order passed by the Subordinate Judge was correct and just. A preliminary objection was raised on behalf of the respondents that no revision lies from the order of remand passed by the District Judge. This objection cannot be entertained because the District Judge has finally disposed of the matter pending before him. We are of opinion that this was not a case in which an appeal lay to the District Judge. The Subordinate Judge had previously passed an order filing the agreement. An appeal from that order was preferred and dismissed. The ultimate order passed by revoking the reference and dismissing the suit would not be appealable unless it came under Section 104, Civil P.C. Section 104(1)(a) cannot apply because the order was not one superseding the arbitration where the order had not been completed within the period allowed by the Court. The fact was that the Court found that as the arbitrator's named were not willing to act it was futile to appoint new arbitrators. Nor did it come under sub-Cl. (d) because the order was not an order refusing to file an agreement to refer to arbitration. An appeal from an order superseding the agreement is limited by the provisions of Section 104(1)(a), Civil P.C. The order passed by the Subordinate Judge was of course not a decree and was not appealable as such. We have however been invited to interfere with the order passed by the Subordinate Judge in revision. It is unnecessary in this case to decide the question whether when one of the arbitrators named in the agreement has refused to act and has died, an agreement can or cannot be filed under Para. 17. The parties respectively rely on two cases of this Court. One is the case of Bhagwan Das v. Gurudayal AIR 1921 All 188 and the other is Fazal Ilahi v. Prag Narain AIR 1922 All 138. In the present case, however, the agreement was filed under Para. 17. The agreement having been filed under Para. 17, the provisions of Rule 19 became applicable Assuming therefore that Rule 5 was applicable and the Court ought to have proceeded in strict accordance with the provisions of that rule it cannot be doubted that, even if the procedure adopted by the Court was irregular, the parties acquiesced in it and waived their objection. The plaintiffs, themselves nominated a number of arbitrators and ultimately the Court decided to appoint one gentleman as the sole arbitrator. After that the only question was whether, if the arbitrator so appointed refused to act, the Court should not appoint another in his place. The order passed by the Court would therefore be an order passed under Sch. 2, Para. 5(2) making an order superseding the arbitration. As there was no suit pending before it, it could not of course proceed with the suit. We are informed that Kaza Ahmad has already instituted a suit, to which the other applicant has been made a party, to enforce his rights which were referred, to arbitration under the agreement. Under these circumstances we find it difficult to set aside the order of the Subordinate Judge on the ground of irregularity which was acquiesced in, and submitted to, by all the parties.
3. We accordingly allow this application in revision, and, setting aside the order of the District Judge, restore the order of the Subordinate Judge. As no objection was raised before the District Judge that no appeal lay to him, we direct the parties to bear their own costs of this revision.
4. I concur. My reason for holding that a revision lies from the order of the District Judge is this: the respondents' objection is that no revision lies because no case has yet been decided. The case had in fact been decided by the Subordinate Judge in a final order from which no appeal lay, and when the District Judge entertained an appeal from that order which he has no jurisdiction to entertain and set it aside his order is certainly open to revision by this Court.