1. This is an application for the revision of an order of the Subordinate Judge of Azamgarh maintaining the award of an arbitrator in execution proceedings. The facts are given fully in the judgment of the trial Court. It is only necessary to say that the decree-holder was proceeding in execution against seven judgment-debtors, who were jointly and severally liable for a sum due to the decree-holder for mesne profits, and the question for decision was the amount of the sum for which they were liable. Of the seven judgment-debtors, five joined the decree-holder in application for a reference of this matter to arbitration, and the reference was accordingly ordered by the Court. At that stage all the seven judgment-debtors were jointly and severally liable for the amount of the decree, though at a subsequent stage two of them, Jagdeo Singh and Faujdar Singh, were exempted by the decree-holder. When the award was filed, an objection was lodged on the ground, among others, that as all the parties had not joined in the reference, the reference was illegal. But the trial Court relying on the decision in the case of Bankey Lal v. Chotey Mian Abdul Shankur 1931 All 453, has held that the reference was not invalid merely because two of the judgment-debtors, who were jointly and severally liable, did not join in it.
2. Under para. 1, Schedule 2 Civil P.C.:
where in any suit all the parties interested agree that any matter in difference between them shall be referred to arbitration, they may at any time before judgment is pronounced, apply to the Court for an order of reference.
3. In the present proceeding it is admitted that all the seven judgment-debtors were jointly and severally liable, and therefore the decree-holder was in a position to execute against any one or more of them. They were therefore one and all interested in the suit at the stage which it had reached when the reference to arbitration was made. If there were any doubt as to the law on the point, it has been decided by decisions of this Court reported from time to lime, and I need only mention three : Haswa v. Mahbub (1911) 10 I.C. 559 and Shib Lal v. Chatarbhuj (1909) 31 All 450, where at p. 452, it has been remarked:
Therefore, it is manifest that the reference was not made by all the parties to the suit as mentioned in Section 506 of Act 14 of 1882. As there was no reference to arbitration by Badri Das and by one of the defendants, the arbitrator appointed under the reference had no power to decide the matter in controversy and the award was ultra vires.
4. This passage is good authority for holding that the present application is one that may properly lie under Section 115, Civil P.C. A third case, which I may refer to is that of Tej Singh v. Ghose Ram 1927 All 563. Learned Counsel for the opposite party has pointed to the decision which is relied on in the trial Court, namely, the case of Bankey Lal v. Chotey Mian Abdul Shankur 1931 All 453, and specially to the passage on p. 433 where the Bench remarks:
But where the interest of the defendants may be severed, as in this case, there does not appear to be any bar to some contesting defendants joining with the plaintiffs in referring the matter indifference between them to arbitration.
5. It is stated that the defendants in that case were jointly and severally liable and for this reason the decision has been relied on. In the present case it is clear that as the judgment-debtors were jointly and severally liable, their interests should not be several, and at the time of the reference the two who did not join were interested in the subject-matter of the suit and the proceedings. I have further been referred on behalf of the opposite party to the decision of Jagrup Ram v. Kashi Prasad Gupta 1934 All 658, but in that case the non-joining defendant was a pro forma party. In other words, he was not interested in the suit in the manner contemplated by the 1st para, of the Schedule 2. So the case is clearly distinguishable from the present one.
6. I am therefore clearly of opinion that the present application must succeed. I therefore allow it with costs and direct that the order of the trial Court be set aside and that the proceedings relating to the ascertainment of mesne profits be continued according to law from the stage where the reference to arbitration was made. The above order relates to Civil Revision No. 446 of 1933. The connected Civil Revision No. 563 of 1933, which relates to costs of the decree-holder, is now of no effect and is dismissed.