1. This revision is directed against an order of the District Judge, Ganjam-Nayagarh, affirming an order of the Additional Subordinate Judge, Berhampur, in Misc. Case 1 of 1949, arising out of Money Suit No. 1 of 1948 on his file. Nakula Choudhury, the opposite party herein, filed a suit for the recovery of some money from the petitioner (defendant) after dissolution of the partnership that had been entered into between him and the defendant. When the trial of the suit was going on the parties referred their disputes to arbitration by five gentlemen, by an agreement dated 30-8-1948. The Court referred the matter to the arbitrators nominated by the parties. The reference was in these terms: 'We appoint the following five respectable men as 'punchayetdars', and the means of the gentlemen are given below. The second paragraph of the agreement says that
'the arbitrators shall take evidence from the plaintiff and the defendant on 5-9-1948 and determine the extent of the liability of the defendant to the plaintiff. The defendant would thereafter deposit the amount so determined by the arbitrators.'
Paragraph 3 says:
'If the plaintiff would go to the temple of Sri Kapileswar Mahaprabhu and answer certain questions put to him by the defendant, so as to dispel his doubts regarding the theft of certain amounts belonging to Baikuntha Subudhi the money deposited by the defendant with the arbitrators shall be paid over to the plaintiff and a receipt obtained therefor'.
2. In pursuance of this agreement the arbitrators look evidence and passed an award (Ex.6) on 26-11-1948. The award says that the arbitrators fixed the liability of the defendant at Rs. 3100 and that the defendant produced gold worth Rs. 3100 and challenged the plaintiff to take the special oath. At that stage the plaintiff and his father went out with Padmalochan Padhy, one of the arbitrators for consultation amongst themselves immediately thereafter Padmalochan returned and said that He would not agree to the award and subsequently resigned from the arbitration. The result therefore is that the award is signed by the rest of the arbitrators and purports to be a decision of tour of the rive originally appointed by the parties,
3. When the award was filed in Court the plaintiff tiled an objection questioning the validity of the award on the ground that in so far as the arbitrators purported to decide the dispute between the parties relating to the alleged theft of Baikuntha's money, the award was invalid as it related to a matter not comprised in the suit. It does not appear that the defendant raised any objection to the award, but the plaintiff admittedly filed a petition objecting to the award. The Courts below have held that the decision of the arbitrators so far as it related to the theft of money belonging to Baikuntha Subudhi was extraneous to the subject-matter of the suit, but that part of the arbitrators' decision could be separated from the part relating to the fixation of the defendant's liability at Rs. 3100. On that view they modified the award by directing that the decision relating to the theft of Baikuntha's money may be ignored and that a decree for Rs. 3100 may be passed in favour of the plaintiff. It is against this order that the defendant has now come up in revision.
4. The first point that has been urged, onbehalf of the petitioner, is that the award itself is invalid as only four out of the fivegentlemen have acted which they were not competent to do. The reference does not authoriseeither a majority award, nor does it contemplate any member resigning; indeed it does notmake any provision for any such contingency.Section 8(1)(b), Arbitration Act, says that
'If any appointed arbitrator refuses to act andthe arbitration agreement does not show thatit was intended that the vacancy should notbe supplied, the Court may fill up thevacancy'.
In this case neither the parties nor any of the arbitrators applied to the Court for filling up the vacancy caused by the resignation of Padmalochan. Nor have the arbitrators themselves appointed an umpire, to act in place of the person who resigned. The reference also does not indicate that the remaining four arbitrators could act as a body and pass an award. In these circumstances, it is submitted that the award passed by the four arbitrators is invalid and that it is liable to be set aside 'in toto', under Section 30(c), Arbitration Act. That Section says that an award may he set aside on the ground that it has been improperly procured or is otherwise invalid.
5. Mr. Mohanty appearing for the plaintiff-opposite party very strongly relies upon an observation of Mookerji, J., in -- 'Golnur Bibi v. Abdus Samad', AIR 1931 Cal 211. The consensus of opinion of all the other High Courts, however, is that the expression 'otherwise invalid' occurring in Section 30(c) should not beread 'ejusdem generis' with the grounds given in the preceding clause, and that that expression is wide enough to embrace all grounds of attack regarding the validity of an award. That this is the better view would appear also from the observations of the Judicial Committee in -- 'Ram Protap v. Durga Prasad', AIR 1925 PC 293 at p. 296, where their Lordships stated:
'An award made otherwise than in accordance with the authority conferred upon them is therefore, their Lordships cannot doubt, an award which is otherwise invalid and which may accordingly be set aside by the Court.'
I have, therefore, little hesitation in accepting the contention, urged on behalf of the petitioner, that the award in the present case suffers from this infirmity and is liable to be set aside. Mr. Mohanty then pointed out that this point was not taken in the Court below. There appears to be some force in this contention. But it is clear that the point was taken in the revision petition filed before this Court. The plea put forward for not raising it earlier in the Courts below is that it was the plaintiff who was impugning the validity of award and not the defendant. But whatever that be, as it is a point that goes to the root of the validity of the award, it has to be entertained even at this late stage as the Courts below do not appear to have considered this point. Mr. Mohanty contends that he should be given an opportunity to meet this and any other new point in the trial Court itself.
6. I would accordingly direct that an opportunity may be given to both parties to put in their objections, if any, to the validity of the award, so that the Courts below may consider them and arrive at their independent conclusion, without taking upon myself the responsibility of pronouncing upon the validity or otherwise of the award in question. I would, accordingly set aside the orders of the Courts below and remit the case to the Court of the learned Additional Subordinate Judge, Berhampur, for reconsideration of any objections that may be filed by the parties. Costs will abide. The revision is accordingly allowed but there will be no order as to costs of this Court.