John Stanley, C.J.
1. In the suit out of which this appeal has arisen, the plaintiff sought a declaration of his title to a house situate in Allahabad. It appears that the house in question was built by the father of the plaintiff. He died in 1892 leaving the plaintiff his heir, at that time a minor. The defendant is married to the plaintiff's sister and he lived in the house with the plaintiff. He also, it appears, was the general attorney of the plaintiff's guardian up to the year 1902, when the plaintiff came of age. A dispute arose between the parties and a suit for accounts was instituted by the plaintiff against the defendant and on the 28th of November 1902, an agreement was entered into between the parties for the settlement by arbitration of their disputes including a dispute as to the title to the house in question. Three arbitrators were appointed but the proceedings proved abortive by reason, it is said, of the conduct of the plaintiff, He served a notice upon the arbitrators calling upon them to desist from passing an award. In November 1907, the defendant instituted a suit against the plaintiff under Section 9 of the Specific Relief Act and obtained a decree awarding to him joint possession of the house in dispute. The present suit was then instituted, namely, on the 31st of March 1908.
2. The defendant pleaded that he was entitled to the house under an oral gift from his father-in-law. This gift is said to have been made in the year 1890. He also set up a plea that he was entitled to the property by adverse possession.
3. The Court below overruled both these pleas but dismissed the suit of the plaintiff on the ground that it was obnoxious to the provisions of the last clause of Section 21 of the Specific Relief. Act. This section prescribes that certain contracts enumerated in the section cannot be specifically enforced and concludes with this provision: 'That save as provided by the Code of Civil Procedure, no contract to refer present or future differences to arbitration shall be specifically enforced but if any person, who has made such a contract and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit'. It appears that at the time of the settlement of issues the pleader for the plaintiff intimated to the Court that the plaintiff had issued a notice to the arbitrators asking 'them not to pass an award. As a matter of fact the arbitrators did not pass any award and it is contended that the notice, to which I have referred, was, within the meaning of Section 21 of the Specific Relief Act, a refusal on the part of the plaintiff to perform the agreement to refer the disputes to arbitration.
4. An appeal was preferred from the decision of the lower Court to this Court and the learned Judges before whom it was argued differed in opinion. Consequently, this appeal under the Letters Patent was preferred and it is for us to say whether the conduct of the plaintiff was such as precluded him from successfully prosecuting -his present suit. It is admitted that upon the merits he is entitled to succeed. If the section in question does not bar the suit, then the decree of this Court and also of the Court below must be set aside and a decree passed in his favour.
5. In addition to the statement of the pleader of the plaintiff to the Court on the settlement of issues to which I have referred, we have some evidence showing what actually occurred. One of the arbitrators Anoda Prasad Banerji was examined and the version which he gives of the plaintiff's interference with the arbitration is as follows: 'Badri Prasad' he stated, told me not to make an award, as Balram Chander, Ram Komar Singh's pleader, was telling him not to make an award. So far as I remember, Jagmohan Singh (the defendant) did not prevent us making an award'. Then in cross-examination he stated: 'The plaintiff or his pleader did not write to me a letter preventing me. The plaintiff did not prevent me. So far as I remember, Badri Prasad showed me Balram Chander's letter'.
6. The defendant's version of what occurred appears in his deposition; He stated that the arbitrators gave Ram Komar (the plaintiff) and himself a notice intimating that Oil such and such a date there would be a meeting of the arbitrators and they should attend. He says: 'A meeting was held by the arbitrators and witnesses were also produced by him (the plaintiff) and me. The arbitrators gave Ram Komar and myself a notice intimating that on such and such a date there will be a meeting of the arbitrators and we should attend. I attended the meeting--regularly, but Ram Komar Singh did not attend. I asked the arbitrators to make an award. They said that they would not make an award until both parties attended. Ram Komar Singh gave notice to the arbitrators riot to make an award'. It seems to me apparent from this evidence that the arbitrators declined to proceed with the arbitration. It was open to them, despite any notice which may have been given to them by the plaintiff, to proceed with the arbitration and to pass an award. But for some reason or other, they did not adopt this course. Further it was open to the defendant to file the agreement under Section 523 of the Code of Civil Procedure of 1882 have an award made and a decree passed upon the award but he did not choose to do so. Nothing was done for a number of years. The only inference that I am able to draw front the conduct of the parties is that the arbitration proceedings were abandoned. The defendant acquiesced in the inaction of the arbitrators and did not ask them to pass an award nor did he take the proceeding which was open to him under Section 523. It appears to me that the arbitrators refused to proceed with the arbitration and with the acquiescence of the defendant the proceedings were abandoned. In this view the judgment of my brother Tudball is correct.
7. In the case of Atma Rai v. Sheobaran Rai A.W.N. (1882) 58 in which an agreement had been entered into between the parties to a dispute over a piece of land to refer to arbitration their difference on the 17th of April 1877 and a suit was instituted on the 8th of November 1880, in regard to the land, nothing having been done under the agreement to refer to arbitration,'the lower appellate Court held that the agreement was a bar to the suit under Section 21 of the Specific Relief Act, but upon appeal this decision was reversed by Straight and Brodhurst, JJ. They based their judgment on the fact that the submission to arbitration had been executed so far back as the 17th of April 1877 and that at the time of the institution of the suit, not only had nothing been done under it but the arbitrators had never met. They held that Section 21 of the Specific Relief Act did not apply observing that the agreement was no bar to the present suit, that it had lapsed not having been acted upon within a reasonable time'. The delay in that case was only three years whereas in the case before us seven years were allowed to elapse without any steps being taken.
8. In Tahal v. Bisheshar 8 A. 57 a somewhat similar question to the one before us arose. One of the parties to a contract to refer a controversy to arbitration brought a suit for part of the Subject-matter so referred. The defendants pleaded as a bar to the suit the provisions of Section 21 of the Specific Relief Act but did not allege in their answer to the plaint that the plaintiff refused to perform his, contract. It was held that the mere act of filing the suit on the part of the plaintiff was not tantamount to a refusal to perform his contract in the sense of Section 21 of the Specific Relief Act, and that the contract, the existence of which would bar suit under the circumstances contemplated by Section 21, must be an operative contract and not a contract broken up by the conduct of all the parties to it. In the course of their judgment the learned Judges say: 'The Judge, in appeal, held that the mere act of filing this suit on the part of the plaintiff is tantamount to a refusal to perform his contract in the sense of Section 21 of the Specific Relief Act. We cannot take this view, and we hold that the contract, the existence of which would bar a suit under the circumstances contemplated by this section, must be an operative contract and not a contract broken up by the conduct of all the parties to it.
9. Again in the case of Adhibai v. Cursandas Nathu 11 B. 199 upon the question whether the actual submission of a subject in dispute to named arbitrators, followed by the attempt of one of the parties to such submission to withdraw from or to prevent an award being made upon the submissions falls within the concluding paragraph of Section 21 of the Specific Relief Act, Farran, J., in his judgment observes: It is not shown whether the plaintiff's withdrawal was justifiable or not; but it appears that the defendant took no steps under Section 523 of the Code of Oral Procedure to have the agreement to refer filed in Court, and thus render the plaintiff's attempt to withdraw from the arbitration nugatory, if it was in fact unjustifiable. (This under the ruling in Pestonjee v. Maneckjee 12 M.I.A. 112 : 10 W.R. (P.C.) 51 it appears, he might have done. There is nothing to show he did not acquiesce in it (i.e., the withdrawal) in which case the ruling in Tahal v. Bisheshar 8 A. 57 would apply'.
10. It appears to me that in this case by mutual consent, the contract to refer to arbitration was rescinded and further, as I think, the arbitrators declined to proceed with the arbitration. Consequently, the arbitration proceedings became abortive. Under the circumstances, there is no bar to the plaintiff's suit and it ought to be decreed.
11. I am of the same opinion. The plaintiffs suit would be barred by the provisions of Section 21 of the Specific Relief Act if at the date of the suit there was in existence a contract to refer the controversy between the parties to arbitration. The circumstances of this case clearly show that no such contract was in existence. As pointed out by the learned Chief Justice, the arbitrators refused to act and the defendant acquiesced in the reference becoming abortive. No action was taken for a number of years and nothing was done to enforce the agreement. There was therefore, no bar to the maintenance of the suit and the claim ought to have been decreed. I agree in the order proposed.
12. In my opinion the inference to be drawn from the conduct of the parties and of the arbitrators, and more particularly from the lapse of time since the agreement to refer to arbitration, is that the agreement had ceased to be operative at the date of institution of the suit. There was, therefore, no contract in existence which under the provisions of the last clause of section' 21 of the Specific Relief Act would be a bar to this suit. I agree in the order proposed.
13. The order of the Court as that the appeal be allowed; the decree of this Court and also of the lower Court be set aside and the plaintiff's claim be decreed with costs in all Courts including fees in this Court on the higher scale.