1. This revision petition arises out ot what purported to be an application under Order 9, Rule 13, Civil Procedure Code. If the matter were really one falling under that rule, I should not have thought fit to interfere in this case, but as there is scarcely any dispute as to the facts and I am satisfied that the order of the District Munsiff declaring the defendants ex parte has not got to be set aside under Order 9, Rule 13, but is to be held illegal for other reasons, which I shall presently state, I regret that I have no alternative but to set aside that order, though I very much sympathise with the attitude which the District Munsiff felt impelled to take when he thought that the defendants were not acting bona fide.
2. The suit had been partly heard, when on the 20th January, 1933, it was referred on the application of both parties to the arbitration of certain persons. It appears from the B Diary, and it is also stated by the District Munsiff in his later judgment, that at the time of making the reference to arbitration, he wished to make it clear that if the arbitrators did not or could not file their award by 31st January, 1933, the date to which he adjourned the suit, the trial must go on. For reasons which I need not state in detail, the arbitrators did not or could not act. It appears that when the papers were taken to their house by a process server, they were not at home and the papers were brought back. The result was that on 31st Jaunary, 1933, the District Munsiff took up the suit for trial and as the defendants were absent and their vakil reported no instructions they were declared ex part emand a decree was passed in favour of the plaintiff on the evidence adduced on the plaintiff's side.
3. An application was filed on the 9th February, 1933 to set aside the ex parte decree. As I have already said, I should not have been prepared to interfere with the lower Court's order on grounds other than illegality or absence of jurisdiction. I am, however, of opinion that as held by Das, J., in Maharaj Bhagat v. Hari Har Bhagat A.I.R. 1923 Pat. 115, the order passed on 20th January, 1933, providing in anticipation that if the award is not filed by the 3lst January, the trial must go on that day, is not one in accordance with law. There has been some contest before me as to whether in the circumstances this case falls under Rule 5 or Rule 8 of the second Schedule to the Civil Procedure Code. I do not propose to express any opinion on that question. Assuming for the sake of argument that Rule 8 is applicable and that is the view most favourable to the respondents - the question arises as to the effect of the last part of that rule, read in the light of the provision in Clause 2 of Rule 3, that where a matter has been referred to arbitration, the Court shall not, save in the manner and to the extent provided in this schedule, deal with such matter in the same suit. Learned Counsel for the respondent drew my attention to the decision, Chockkappa Mudaliar v. Ahwiedullah Sahib (1913) M.W.N. 863, where it was held that when on the expiry of the time fixed for the filing of the award the Court, without objection by the parties, adjourns the suit for trial to another date, such act must be taken in effect to amount to a supersession of the arbitration and that the absence of a formal order of supersession was immaterial. It does not appear to me that that decision in any way conflicts with the proposition enunciated by Das, J., in the Patna case.
4. Rule 8 of the second Schedule to the Code contemplates that the Court must be in a position as and when occasion arises for sufficient cause to allow further time for the making of the award. I do not think the legislature contemplated that the Court should by an order made once for all at the time of the reference deprive itself of the power to exercise this discretion in accordance with circumstances that may arise in due course. Whether the order of supersession be formal or informal, it is contemplated that it should be made only at the expiry of the time fixed for the filing of the award and not at the stage of the reference itself. In this view I do not think that the District Munsiff had jurisdiction to deal with the suit on the 31st January, 1933.
5. Learned Counsel for the respondents rightly points out that this is not the basis on which the defendants applied to the lower Court nor was any appeal to the lower appellate Court competent in this view. The application should strictly have been made under Section 151, Civil Procedure Code, bringing it to the notice of the lower Court that its procedure was unauthorised. But now that the facts are before me, I do not think the error in the procedure followed by the petitioners should stand in the way of my setting the matter right. Nor do I feel pressed by the fact that this revision petition has been filed against the order of the lower appellate Court and not against the order of the District Munsiff.
6. The result is that the orders of both the lower Courts will be set aside and the District Munsiff will be directed to restore the suit to file and deal with it in accordance with law. In the circumstances and in view of the erroneous procedure adopted by the petitioners, I direct that the parties shall bear their costs both here and in the Courts below, so far as they are incidental to the application to set aside the ex parte decree.