1. The Subordinate Judge held that the award is vitiated on the ground that the arbitrators could not have been ignorant of the institution of the suit (O.S. 129 of 1925) and ' they ought not, therefore, to have proceeded to make an award.' The ground on which the Subordinate Judge held the award to be vitiated is not happily expressed. The knowledge of the institution of the suit on the part of the arbitrators is not essential to deprive them of jurisdiction. It was held in Doleman & Sons v. Ossett Corporation  3 K.B. 257 that, after the filing of the suit, the private tribunal has become functus officio. This case has been followed in all the Courts in India: vide Appavu v. Seeni  41 Mad. 115 Sarat v. Rajkumar : AIR1923Cal135 , Jai Narain Babu Lal v. Naraindas Haini Mal A.I.R. 1922 Lah. 369. The learned vakil for the appellants argued that the subject-matters in dispute in the said O.S. 129 of 1925 and before the arbitrators are different. The reliefs are different and the causes of action also are different. The cause of action and the relief may vary according to the person that is, the plaintiff. But we are satisfied that the subject-matter in dispute is really the same, viz. the question who is to succeed to Karuppa Goundan's share of the family property.
2. The learned vakil for the appellants next contended that the respondents ought to have applied to set aside the award within ten days after their getting notice of the petition for filing the award. But Section 21, Schedule 2, Civil P.C., does not contemplate an application to set aside the award like Sections 16 and 19 which deals with the case of an agreement out of Court followed by a reference through Court. Section 20 (3) also is against the appellant's argument.
3. The result is that we agree with the Subordinate Judge that the arbitration proceedings have been abortive and futile. We observe that O.S. 113 of 1923 was never dismissed. It was 'struck off' in view of the arbitration proceedings. We have no doubt that the appellants are entitled to have it revived in view of the failure of the arbitration proceedings and to proceed with it. The two suits, O.S. 113 of 1923 and O.S. 129 of 1925, may well be tried together as they involve positively the same points in dispute. Subject to these observations the civil miscellaneous appeal is dismissed with costs.