1. Mr. Upadhiya who holds the brief of Mr. Kanhaiya Lal Misra, counsel for the applicant, appeared before I signed my first order, and I have allowed the case to be argued on the merits.
2. This is an application for the revision of an order of the Additional Munsif of Azarngarh dismissing an objection to an award made by certain arbitrators. The facts are given in the order of the learned Additional Munsif. The objection has been made on the ground that one of the three arbitrators who had been appointed by the parties re-refused to sign the award. It was indeed stated on behalf of the applicant that he had not taken any part in the arbitration proceedings. The Court has found as a fact that all the arbitrators had arrived at a decision with respect to the subject-matter of dispute, that they waited to give the award in the hope that the parties might compromise, and then, when there was no compromise, one of the arbitrators refused to sign the award and filed his resignation. After considering the matter the Court has found that this did not amount to misconduct on the part of the arbitrator.
3. It has been argued by Mr. Upadhiya on behalf of the applicant that an important question of law is raised here and that there is considerable conflict of opinion about it, namely, whether the absence of the signature of one of several arbitrators would vitiate an award. In support of this contention he has referred me to the case of Nand Ram v. Fakir Chand (1885) 7 All 523, Ramdas Sahu v. Judagi Lohar 1928 Pat 231 and Ramesh Chandra Dhar v. Karunamoyi Dutt (1906) 33 Cal 498. There are other decision of other Courts to which however I did not wish him to refer me, as on a point of this kind the authority of the Allahabad High Court would seem to be sufficient. It was certainly held in the case of Nand Ram v. Fakir Chand (1885) 7 All 523, that the presence of all the arbitrators at all the meetings was necessary, and especially at the last meeting when the final act of arbitration is done. Consequently, where three arbitrators were appointed and one Subsequently refused to act and withdrew from the arbitration, then in spite of the fact that the reference had provided for a decision by a majority of the arbitrators, it was held that the Court could not pass a decree on the award of the arbitrators who remained after the resignation of the one. This is a decision of two Judges dated 1885.
4. On the other hand there is a later Bench decision, the case of Ram Sundar Tewari v. Kulwanti 1922 All 233, dated 1922 in which it was decided that where one of several arbitrators had agreed to an award, but wilfully refused to sign it, it was held that though the absence of his signature was a legal flaw, the Court was justified in affirming the award.
5. It appears to me that the failure of one of several arbitrators to sign an award may have a different effect in different cases, but that if one of, the arbitrators withdraws from the arbitration altogether and refuses to cooperate with his colleagues, and they nevertheless proceed to give an award without his help, that must amount to misconduct. But if, as has been found to have been the case here, the arbitrators had arrived at a decision, but merely waited to sign the award, and in the interval between the decision and the signing of the award, one of them changed his mind and refused to sign it, it does not necessarily follow that the arbitrators have been guilty of misconduct in framing the award and filing it in Court. The trial Court has considered the matter carefully and has come to the conclusion that there has been no misconduct. If this decision was obviously wrong in law, the result would have been that in accepting the award and basing a decree on it the Court would have been exercising a jurisdiction with which it is not vested by law. If, on the other hand, the decision is not obviously wrong in law and has been arrived at after a judicial consideration of the circumstances, it cannot be said that the Court has acted without jurisdiction, and no application under Section 115, Civil P.C., will lie. The application therefore is dismissed with costs.