V.B. Raju, J.
1. This revision application is directed against the order of 2nd joint Civil Judge, Junior Division, Surat, passed in Civil Misc. Application No. 212 of 1958, directing that a decree should be passed in terms of an award. The order was passed on an application given by the arbitrator, who was appointed by the parties by a private agreement. A reference to private arbitration was made after the suit had been instituted but without any reference by the Court under Section 21 of the Arbitration Act. It is therefore contended that such an award during the pendency of a suit without an order of reference by the Court as contemplated in Section 21 of the Arbitration Act is bad, and the Court was not right in passing a decree in terms of such an award. This contention is 9bviously correct in view of the provisions of Section 21 of the Arbitration Act. Reference may be made to Jagaldas Damodar and Co. v. Purshottam tfmedbhai and Co. : AIR1953Cal690 No authority in support oi the contrary view is cited. The order passed by the Court is clearly wrong and amounts to an illegal exercise of jurisdiction.
2. It is, however, contended by the learned Counsel for the opponent that the arbitration and the award following it should be treated as a private Adjustment of the claim. Reliance is placed on Manila Motilal v. Gokaldas Rffvji 22 Bom. Law Reporter, 1048. It is open to either party to raise this contention before the lower Court, and the lower Court will consider whether such contention can be raised and if it can be raised in what manner it should be decided.
3. The revision application is therefore allowed and the order of the lower Court passed in Civil Misc. Application No. 212 of 1958 is set aside. No order as to costs.