Yahya Ali, J.
1. The first defendant in O.S. No. 481 of 1939 on the file of the District Munsiff's Court, Vellore, is the petitioner. The suit was filed in 1939. It was a suit for partition of joint family properties. A preliminary decree was passed on 23rd February, 1942, and the Court appointed a commissioner for talcing accounts and for partitioning the properties. No appreciable progress seems to have been achieved for over two years. On 26th May, 1944, the parties to the suit filed a memo in Court stating that they had all executed a muchilika to panchayatdars for settling the suit and praying that the documents filed by the parties into Court might be returned to them for being placed before the panchayatdars. This was signed by the parties and a further endorsement was made thereon that defendants 3 and 4 had no objection to the handing over of the account books to the plaintiff. The Court appears to have asked for the memo being stamped so that it could be treated as a petition, and thereafter on 10th June, 1944, the following order was passed:
This is treated as a petition. The Commissioner is requested to bring all the books and documents on the 16th.
2. On 16th June, 1944, the following order, was passed:
Deliver the books to the plaintiff's pleader for production before the panchayatdars.' This is a case governed by Act X of 1940. Section 21 of the Act, which is in Chapter IV which deals with arbitration in suits, runs thus:
Where in any suit all the parties interested agree that any matter in difference between them in the suit shall be referred to arbitration, they may at any time before judgment is pronounced apply in writing to the Court for an order of reference.
3. Section 23 provides:
(1) The Court shall, by order, refer to the arbitrator the matter in difference which he is required to determine, and shall in the order specify such time as it thinks reasonable for the making of the award.
(2) Where a matter is referred to arbitration, the Court shall not, save in the manner and to the extent provided in this Act, deal with such matter in the suit.
4. It will appear that, in order to vest jurisdiction in the arbitrators to deal with a pending suit, it is necessary that the Court should make an order referring the suit to them and should specify in the order such time as it thinks reasonable for the making of the award. It is only when the matter is referred to arbitration by the Court in that manner that under Sub-section (2) of Section 23 the Court ceases to have jurisdiction to deal with the suit or such matters therein as are referred to arbitration. I find myself unable to construe the two orders passed by the Court on the 10th and 16th June, 1944 as orders of reference to arbitration within the meaning of Sub-section (1) of Section 23.
5. It was further argued at one stage that even the application made by the parties for the return of books did not amount to an application for reference to arbitration under Section 21; but the learned advocate for the petitioner subsequently conceded that having regard to the view taken in some decisions, the present application, Ex. D-1, might for all practical purposes be treated as such an application. But that does not serve the purpose, there being no order made by the Court referring the suit to the arbitrators as required under Section 23. What happened was that after the arbitrators had gone on for four months with the examination of the accounts, one of them who belonged to Trivandrum left the place. For that reason as also because the first defendant apprehended that the arbitrators were not proceeding along fair and proper lines in their inquiry, he served notices upon the arbitrators in September 1944, asking them to stop further investigation and to return the account books to the Court. He subsequently filed the application, I.A. No. 1326 of 1944 in Court out of which the present petition arises. In that application he prayed for an order directing the panchayatdars to return the account books to Court and to post the suit for trial and proceed with the same. The plaintiff opposed the application mainly on the ground that there was a valid reference of the suit to arbitration and that the first defendant was not entitled to revoke the same. As already stated, I find that in the absence of an order of reference under Section 23, that contention of the plaintiff cannot be upheld. In the circumstances, it was open to the first defendant to move the Court for the recall of the account books from the panchayatdars.
6. Some stress was laid upon the interests of justice not being served, even if there was any material irregularity or illegality in the matter. I find that one of the panchayatdars has gone out altogether and an application has also been filed in Court for the appointment of another panchayatdar in his place. If that should take place, necessarily the entire investigation will have to be done de novo. Instead of that process being adopted, the proper course would appear to be, having regard to the altered circumstances, that a commissioner appointed by the Court should examine the accounts and make the division of the properties.
7. The petition is, therefore, allowed, and the order of the learned District Munsiff reversed.
8. No order as to costs.