1. The petitioner seeks to revise the award decreed by the District Munsif, Tirukoilur, in O.S. No. 37 of 1922 on the ground that he was a party interested and never signified his agreement that the matter should be referred to arbitration. It is not disputed that the petitioner never agreed. He was 'ex parte in the suit and only those who put in an appearance signed in token of their consent. Nor can it be said that by remaining ex parte he waived his right to be consulted in the matter. There is some conflict of judicial opinion on this point, the Calcutta High Court holding that even though he be ex parte the party interested must be consulted and the Allahabad High Court holding the contrary view. Girija v. Kanai (1917) 27 C.L.J. 339 and Ajudhia Prasad v. Badar-ul-Husain I.L.R. (1917) All 489. The ruling case in this Court is Potita Pavana Panda v. Nanasinga Panda I.L.R. (1919) Mad. 632 to which I defer.
2. It remains to consider whether the petitioner was a party interested. He was impleaded by plaintiff as one of his vendors. That is to say he had covenanted to convey title to the plaintiff and was interested in the plaintiff's suit to establish that title, for otherwise he might be sued for damages. It cannot be argued that no question of damages could arise because the purchaser knew that there were disputes about the title. The plaintiff has freely admitted before the arbitrators that he knew of this dispute and objected, but was assured that he would be given documents to prove that the property was the vendor's by ancestral right. That in these circumstances the vendee still has a claim against the vendor is laid down in Vellayappa Rowthen v. Bava Row-then (1915) 29 I.C. 747 by a Bench of this Court.
3. So it may be taken on the facts that in the present suit all the parties interested did not agree that a matter in difference between them should be referred to arbitration.
4. It was next argued that even in such circumstances this Court should not interfere by way of revision. The case already referred to, Potita Pavana Panda v. Narasinga Panda ILR (1919) Mad. 632 is sufficient authority that such interference is justifiable. Ghulam Khan. v. Muhammad Hassan (1901) I.L.R. 29 Cal. 167 (P C) is sometimes quoted as if a Court acting under the second schedule of the Code was entirely immune from revisional proceedings. But if a Judge refers a case to arbitration without the consent of the parties interested, he is exercising a jurisdiction not vested in him by law, and as made clear in this very ruling that is one of the contingencies for which the Judicial Committee contemplates the possibility of revision.
5. Lastly, it was suggested that the petitioner is colluding with the plaintiff, and only remained ex pane in order to upset the award should occasion arise.
6. There is no evidence of collusion, and if this were the plot, the respondents should have taken care to defeat it by discovering at the outset if the petitioner meant to withhold his consent.
7. Accordingly the petition is allowed and the decree is reversed. The suit must proceed to trial. The costs to be part of the costs of the suit.