1. The suit concerned in this Civil Revision Petition was instituted by a reversioner claiming the rights as an adopted son to have Ms title declared to certain properties in Schedules A, B and C and to recover possession of them from the person to whom the last male owner's wife and mother had alienated them. During the trial of the suit there were two references to arbitration under Schedule II, para, 1, Civil Procedure Code. The first was on 22nd August 1919 by plaintiff and defendants Not. 6 to 8 who were interested in B Schedule properties. The second reference was on 29th August 1919 by plaintiffs and defendants Nos. 1, 3 and 4 who were interested in A Schedule properties.
2. It is now urged as the sole ground of revision by defendants Nos. 6 to 8 that the entire reference to arbitration and the arbitrator's award are invalid because defendants Nos. 2 and 5 did not join in the reference. Second defendant w the brother of first defendant and 5th defendant is the undivided son of 2nd defendant. They had no interest in the B Schedule properties over which the plaintiff and these petitioners were disputing. But there was a common issue between the plaintiff and all the defendants as to plaintiff's adoption.
3. Under Section 506 of the Civil Procedure Code of 1882 it was necessary that all parties to a suit should join in a reference to arbitration. In Pitam Mal v. Sadiq Ali 24 A. 229 : A.W.N. (1902) 19 all the parties to a suit was interpreted as meaning all the parties interested, and in the present Code it was so expressed.
3. Here the defendants Nos. 2 and 5 were ex parte throughout and were exonerated on 1st September, that is, seven days before the arbitrator submitted his award. From the mere fact that they did not put in an appearance and the case proceeded ex parti so far as they were concerned, it cannot be assumed that they were not interested parties vide Polita Pavana Panda v. Narasinga Panda 36 M.L.J. 538 and Laduram-Nathmull v. Nandalal Karuri 31 C.L.J. 150. It is more material that defendants Nos. 1, 3 and 4 in their written statement asserted that defendants Nos. 2 and 5 had no interest in the A Schedule properties and it has never been suggested that they had an interest in the B Schedule properties. After they were exonerated they had no further interest in the suit, even if they had an interest before. In Haswa v. Mahbub 8 A.I.J. 645 it was held by the Allahabad High Court Mat it was essential that all parties who were interested at the time of the reference to arbitration should join and that otherwise the reference and the award would be invalid. There is no finding whether the defendants Nos. 2 and 5 were interested at the time of either of the two references and if necessary I should call for a finding from the Subordinate Judge on this point. But I hold that, in any case, it is not open to the defendants Nos. 6 to 8 to ask this Court to proceed under Section 115, Civil Procedure Code. They did not raise this objection in their memo, of objections to the award presented in the lower Court, and they have failed to show that defendants Nos. 2 and 3 are necessary parties to the suit between the plaintiff and themselves. I, therefore, dismiss the Civil Revision Petition with costs.