1. In this case a suit was referred to arbitration-three arbitrators being appointed. As two of the arbitrators were absent the parties agreed to abide by the decision of the third alone. He was accordingly requested to decide this suit and other matters. He gave his decision so far as this suit is concerned and deferred his enquiry into other matters, but owing to defendants' obstruction no award was made in those matters. On application the lower Court recorded the award under Order 23 Rule 3. Defendants appeal.
2. The greater portion of their argument has been addressed to the plea that as the award was only partial, it is not valid and has referred to Randall v. Randall (1805) 103 E.R. 32 and Bradford v. Byran (1741) 125 E.R. 1167 : Willes 268. An examination of these and other cases on the point i.e., Risden v. Inglet 78 E.R. 1065 , Ormelade v. Coke 79 E.R. 303 , Wrightson v. Bywater (1830) 150 E.R. 1114 : 3 M & W 192 and Simonds v. Swaine 127 E.R. 947 shows that there is no rule of law that a partial award is invalid, but that the question has to be decided on the intention of the parties, the matter being a subject of contract between them. In the earlier cases an express contract was required, but later an implied contract that the award should be given on all points referred was held sufficient. We therefore have to determine the intention of the parties in the present case. The defendants do not seem to have placed much reliance on this implied contract until they came up in appeal and even in their appeal memorandum, the ground is not taken clearly and unambiguously. The arbitrator's report (Ex. C.) and his report Ex. G. as well as 1st defendant's letter (Ex. D.) and Ex. F. show that the matter involved in this suit was decided and the decision accepted by both parties. The reference in Ex. C. to certain contentions put forward by defendants shows that they were a plea in miseri cordium after the decision and could in no way affect the award. Taking all the circumstances into consideration we think that there was no implied agreement that the award were given in respect of all the matters referred for decision. Further defendants prevented completion of the award by their own conduct, and on the principle that when a party to a contract wrongly prevents a thing done by another party that thing is deemed to be done vide Mackay v. Dick (1881) 6 A.C. 251 and defendant cannot now plead that the award is incomplete. A further point was taken that as a reference had been made to arbitration the Court could not act under Order 23 Rule 3, but only in accordance with Schedule II Civil Procedure Code. The time for submission of the award had expired when the Court passed its order. It must therefore be deemed to have exercised its power to supersede the arbitration and to deal with the suit.
3. The second reference to private arbitration was made before the time expired and it is argued that there was then no suit to be compromised, as the suit was only pending for certain limited purposes specified in Schedule 11. Even conceding this proposition the suit must still exist and the compromise was a compromise of that suit.
4. Venkatasami Naicken v. Venkataswami Naicken 36 M.L.J. 291 is authority against the further proposition that the Court was bound to act under Schedule II and not under Order 23 Rule 3.
5. The appeal is accordingly dismissed with costs and the Civil Miscellaneous Appeal is also dismissed printing costs alone being allowed.