1. The facts are briefly these. The plaintiff instituted a suit to establish her right to the site marked B in the plan and to direct the defendant to close the gateway D opened by him into the said site and also for a permanent injunction to restrain the defendant from opening the gateway. The defendant raised various contentions denying the plaintiff's exclusive right. After the framing of the issues the parties entered into a muchilika Ex. I by which the matters concerned in the suit and other matters in which other parties also were interested were referred to arbitration. The arbitrator made an award Ex. II. The defendant filed it in Court and asked for a decree in terms of it. On objections being raised by the plaintiff an additional issue was raised as to whether there had been a lawful adjustment or compromise. The District Munsif holding that there was one, dismissed the plaintiff's suit. His decision was confirmed in appeal. The plaintiff has now preferred this second appeal against the Lower Court's decree.
2. The main point argued by the learned vakil for the appellant is based upon Section 89 of the Civil Procedure Code. According to that section which has been newly introduced in the Civil Procedure Code of 1908
Save in so far as is otherwise provided by the Indian Arbitration Act, 1899 or by any other law for the time being in force, all references to arbitration whether by an order in a suit or otherwise, and all proceedings thereunder, shall be governed by the provisions contained in the second schedule.
3. It is argued that in view of the provisions of this section, the Lower Courts ought to have held that the reference to arbitration in a pending suit except in the manner provided by paragraphs 1 to 16 of the second schedule to the Civil Procedure Code is not warranted by law and that, therefore, the award made in this case is invalid and unenforceable. In reply it is contended that an award made without the intervention of Court in a pending suit should be regarded as an adjustment under Order 23, Rule 3 of the Civil Procedure Code and that the words 'any other law for the time being in force'' in Section 89 are wide enough to include such an adjustment.
4. On this question there is a great diversity of judicial opinion amongst the various High Courts. The most recent decision of the Bombay High Court is reported in Manilal Motilai v. Gokaldas Rowji ILR (1920) B 245 . This decision overruling a prior decision of the same Court reported in Shavakshaw v. Tyab Haji Ayab ILR (1916) B 386 held that an award could not be regarded as invalid merely because it was made in a reference by parties to the suit without the intervention of the Court and that when the award was brought to its notice the Court should try the issue whether it is not binding on the parties under the general principle of the law of contract by proceeding under Order 23, Rule 3. The Calcutta High Court has expressly dissented from this view. In Amar Chand Chamaria v. Banwari Loll Rakshit ILR (1921) C 608 it was held that where parties have recourse to private arbitration without the consent of the Court in a pending suit the award cannot be enforced under Order 23, Rule 3 of the Civil Procedure Code. See also The Dekari Tea Co., Ltd. v. The India General Steam Navigation Co., Ltd. 25 CWN 127 and Ram Pratap Chamria v. Durga Prasad Chamria (1923) 28 CWN 424. In a recent Full Bench case the Allahabad High Court has dissented from the Calcutta rulings and followed the decision of the Bombay High Court in Manilal Motilal v. Gokaldas Rowji ILR (1920) B 245. In Hari Parshad v. Soogni Devi (1920) 3 Lah LJ 162 it was held that an award in a pending suit made without the intervention of the Court cannot be regarded as an adjustment under Order 23, Rule 3 if it is not agreed to by all the parties. Our own High Court has always been of the opinion that an award passed in a pending suit without the intervention of the Court may be regarded as an adjustment under Order 23, Rule 3. To take the earliest case in Lakshmana Chetty v. Chinnathambi Chetty ILR (1900) M 326 no express decision on the question was given, but the Court held that the award in that case could not be given effect to as the reference to arbitration was not lawful. In Chinna Venkatasami Naicken v. Venkatasami Naicken : (1919)36MLJ291 the opinion is indicated that an award passed without the intervention of the Court would be valid as an adjustment under Order 23, Rule 3 of the Civil Procedure Code. In Alagu Pillai v. Mayilappa Pillai : AIR1923Mad576 this decision is quoted as an authority against the proposition that in cases like the present the Court is bound to act under the second schedule and not under Order 23, Rule 3. Chintalapalli Chinna Dorayya v. Chintalapalli Venkanna 76 IndCas 502 is another decision in favour of the view that Section 89 of the Civil Procedure Code is not a bar to the application of Order 23, Rule 3 to cases in which there has been a reference to arbitration. Virabhadra Gowd v. Kalyani Gangamma AIR 1926 Mad. 1211 also supports the same view. The most recent decision of this Court is a decision by a single Judge in S. A. No. 882 of 1925 where also the prior decisions of this Court have been followed in preference to the view expressed in Amar Chand Chamaria v. Banwari Lall Rakshit ILR (1921) C 608. In the present state of authorities we are asked by the learned vakil for the appellant to accept the decisions of the Calcutta High Court as laying down the correct law. He has also drawn our attention to the Privy Council decision in Ghulam Khan v. Muhammad Hassan ILR (1901) C 167 : 1901 12 MLJ 77 which he strongly relies upon in support of the Calcutta view. In the view that we take of this question it is not necessary to discuss the appellant's arguments in detail. We will only say that the arguments based on the Calcutta decisions are not without force, having regard to Section 89 of the Civil Procedure Code; but the contrary view has been consistently held by this Court in various cases as pointed out above. The question is essentially one relating to procedure. Our Court has taken a definite position with regard to this matter and it has been followed for a considerable number of years. We think that this long-standing practice should not be disturbed. In these circumstances we are not prepared to depart from the procedure accepted all along as correct by our Court or to refer the matter to a Full Bench.
5. We must therefore overrule the appellant's arguments on this point and hear the case on the merits.
[This Second Appeal coming on for final hearing the Court delivered the following :--]