1. The plaintiff in this suit moved the District Court, where it was pending, by Interlocutory Application No. 24 of 1911 for an adjournment on the ground that the parties had already appointed an arbitrator, whose award was awaited. The application was transferred with the suit to the Subordinate Judge's Court and was, in circumstances which are not clear, disposed of by an order appointing as arbitrator the person named in it and fixing a date for the submission of his award. That award was afterwards, in spite of the objection of the 1st defendant, the present petitioner, embodied in a decree. An appeal against this decree to the District Court was afterwards dismissed on the ground that no appeal lay with reference to Section 16 (2), of Schedule II, of the Code of Civil Procedure. In Civil Revision Petition No. 595 of 1913 this Court is asked to revise that order of dismissal and in Civil Revision Petition No. 596 to revise the Subordinate Judge's Court's decree.
2. The learned District Judge in appeal assumed that, as the first defendant contends, the application already referred to was only for an adjournment pending the award of the arbitrator privately appointed, that the Court's order of appointment, to which the defendants were not parties, was, therefore, passed without jurisdiction and that the award, therefore, might, if consideration on the merits had been possible, have been treated as invalid. He then held that even on those assumptions he was unable to entertain an appeal against the resulting decree with reference to Ghulam Khan v. Muhammad Hussan 29 Ca. 167 : 29 I.A. 51 : 6 C.W.N. 226 : 25 P.R. 1902 : 4 Bom.L.R. 161 : 12 M.L.J. 77, Kanakku Nagalinga Naick v. Nagalinga Naick 4 Ind. Cas. 871 : 32 M. 510 : 6 M.L.T. 176 : 19 M.L.J. 480 and Tallapragada Suryanaraina Row v. Tallapragada Sarabaya 9 Ind. Cas. 173 : (1911) 1 M.W.N. 151 : 9 M.L.T. 251 : 21 M.L.J. 263, and these cases, in my opinion, justify his decision.
3. Here an attempt has been made to distinguish them on the ground that they dealt with awards, the validity of which was questioned owing to what happened after the reference to arbitration and appointment of an arbitrator which were originally valid, whilst here on the assumptions made there was never a valid reference or appointment at all. No doubt this describes the direct effect of the cases correctly; but it takes no account of the principle on which they were decided. In Ghulam Khan v. Muhammad Hussan 29 C. 167 : 29 I.A. 51 : 6 C.W.N. 226 : 25 P.R. 1902 : 4 Bom. L.R. 161 : 12 M.L.J. 77, there is a statement that no question can arise as to the regularity of arbitration proceedings in pending litigation, because the agreement to refer and the application to the Court must have the concurrence of all parties and the actual, reference is the order of the Court.' But the case there under disposal was not one in which the fulfilment of those conditions was disputed, as it is here; and there is nothing to impair the generality of the principle, approved elswhere in the judgment, that no appeal on the ground that the award was void ab initio would lie. This principle was referred to and relied on in Kanakku Nagalinga Naick v. Nagalinga Naick 4 Ind. Cas. 871 : 32 M. 510 : 6 M.L.T. 176 : 19 M.L.J. 480, though the objection there was to irregular procedure after the appointment of the arbitrators. In Tallapragada Suryanaraina Row v. Tallapragada Sarabaya 9 Ind. Cas. 173 : (1911) 1 M.W.N. 151 : 9 M.L.T. 251 : 21 M.L.J. 263 the objection again related to what happened after the first appointment was made; but it resembled the objection in the present case, because it was to the way in which vacancies arising in the body of arbitrators before the award were filed. In both cases the award is impugned on the same ground, as not made by a tribunal constituted by the agreement of the parties; and then it cannot matter whether (as here) the defect in the tribunal was due to the absence at the earlier stage of an agreement which would have given it jurisdiction as a whole, or the absence of one at the later which would have given jurisdiction to its individual members. There is accordingly no reason for different rules as to the right of appeal in the two cases. In the present case also the law must be taken to be that where a decree based on an award is in question, the decreeing Court is made the sole Judge of its propriety, and that no appeal lies.
4. It has also been argued with reference to Pragdas v. Girdhardas 26 BA. 76 : 3 Bom. L.R. 431 that the decree, though passed on an award, can and should be taken to have been passed with reference to Order XXIII, Rule 3, of the Code of Civil Procedure, as giving effect to a compromise and that it is, therefore, open to the 1st defendant to appeal on the ground that no compromise was really agreed on, Goculdas Bulabias . v. James Scott 16 B. 202. The first answer to this is that the proceedings never have been conducted, as they statedly were in the first case cited, with reference to Order XXIII. The second is that in that case there was no question of the right of appeal and the Court, therefore, cannot be taken to have decided that the whole arbitration procedure was superseded or that it is open to an appellant to describe the, proceedings in the way which best suits his advantage. The argument does not call for separate discussion on its merits and must be rejected.
5. As I hold that no appeal lay against the order of the Subordinate Judge, Civil Revision Petition No. 595 must be dismissed with costs. This Court will not ordinarily interfere in revision with such an order, vide Ghulani Khan v. Mahomed Hussain 29 C. 167 : 29 I.A. 51 : 6 C.W.N. 226 : 25 P.R. 1902 : 4 Bom.L.R. 161 : 12 M.L.J. 77 and Batcha Sahib v. Abdul Gunny 21 Ind. Cas. 308 : (1914) M.W.N. 142 : 14 M.L.T. 314 : 25 M.L.J. 507, and here the decision being based on a finding of fact that defendants were parties to, and consented to, the order of reference, the case is not one for interference. Civil Revision Petition No. 596 is, therefore, dismissed with costs.