1. This is a defendant's application in revision against the order of the learned Subordinate Judge passing a decree in accordance with the terms of an award. A suit for partition of joint family property was brought in which the applicant who is minor was a defendant. After protracted litigation since 1927 the suit was referred to arbitration. The deed of reference was signed by the guardian of the applicant on his behalf. An award was made by the arbitrators. The applicant came up in revision here and the case was sent back to the lower Court with directions to give 10 days' time to the parties to file such objections as they may wish to file to the award. Consequently 10 days' time was given to the parties for filing an objection. An objection was filed by the guardian of the applicant, but on the day fixed for the hearing of the objection the guardian absented herself and the objections filed by the parties were heard by the learned Subordinate Judge and they were all disallowed. Thereafter the learned Subordinate Judge passed an order for decree in accordance with the terms of the award.
2. The applicant has come here a second time in revision. His objection now is that the deed of reference was invalid as no sanction had been obtained by his guardian from the Court to refer the matter to arbitration. This objection was not taken by the applicant before the decree was passed in terms of the award. The learned Counsel for the applicant relies on Rule 7, Clause 1, Order 32, which lays down that no next friend or guardian for the suit shall, without the leave of the Court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. It has been held by this Court in several cases that the word 'agreement' does not refer to an agreement for reference to arbitration. The provisions relating to arbitration proceedings given in Schedule 2, Civil P.C., are self-contained and consequently Rule 7, Clause 1, Order 32, does not apply to such proceedings.
3. This matter was considered as far back as 1905 in Hardao Sahai v. Gauri Shankar 28 All 35. It was held there that a minor party will be bound by the consent of a guardian to refer the matters in dispute to arbitration, if there is no fraud or gross negligence although the Court has not under the provisions of Section 462 sanctioned the agreement to refer. This point was again considered in the Full Bench case reported in Lutawan v. Lachya 1914 36 All 69. The case cited above was followed in this case. It was observed that Order 32, Rule 7, Civil P.C. 1908, does not control Article 1, Schedule 2. It is not therefore necessary for the guardian of a minor party to obtain the express leave of the Court before agreeing to a reference to arbitration being made by the Court. There has been no dissentient ruling since then in this Court. In Ghulam Khan v. Mahommad Hassan (1902) 29 Cal 167 at p. 185 their Lordships of the Privy Council observed:
Their Lordships are inclined to agree with the view of Clark, J. in Jhangi Ram v. Budho Bai 84 PR 1901, that in the case of an award, revision would be more objectionable than an appeal. If an application in revision were admissible in a case like the present, the finality of any award would be open to question. Their Lordships, however, are of opinion that such an application is incompetent. The application in revision in the present case was avowedly an application to set aside the award.
4. The agreement referred to in Rule 7, Clause 1 apparently refers to the agreements which dispose of the suit. In the case of an agreement to refer the suit to arbitration, there is no disposal of the suit. On the other hand, instead of the suit being tried by the Court the suit is tried by the arbitrators. Sometimes the trial by arbitrators is much more feasible and convenient to the parties. In the case of a trial by arbitrators the parties have a right to take such objections as they may wish to take to the award which may be made by the arbitrators and if there is anything under which the award can be legally set aside, it is open to the party dissatisfied to file an objection. In this case the applicant was given an opportunity to file an objection and he did file an objection. But on the date of the hearing, as already stated, he absented himself. This fact also goes against the applicant. In any case, in view of the consistent rulings of this Court and the observations of their Lordships of the Privy Council, we are not prepared to interfere in revision. It is therefore ordered that the application be dismissed with costs.