1. In this case, the appellant did not appear in the Court of first instance. The other parties to the suit agreed to refer the matter to arbitration and an order to that effect was made by the Court. Judgment was pronounced in accordance with the award. A decree followed. The appellant now appeals and contends that the award purports to bind him though he was not a party to the reference. The scope of the Second Schedule, paragraphs 15 and In, Code of Civil Procedure, was considered in Second Appeal No. 1192 of 1913 to which I was a party, and it seems to me that on the authorities as they stand, an appeal would lie from a decree purporting to bind a person who never submitted to arbitration or where there has been no agreement to refer at all. The 1st respondent in the present case concedes that the decree ought not to bind the appellant and is willing to have it made explicit that it cannot be enforced against the appellant. It seems to me, therefore, that the decree should contain a clause to that effect.
2. The appellant contends further that the award cannot stand to any extent as he was not a party interested' (within the terms of the Second Schedule, paragraph 1, Code of Civil Procedure), and he no having concurred in the reference to arbitration, the reference is altogether vitiated. He was interested, he says, as the 4th defendant is a purchaser from his father, the deceased 1st defendant, and if the suit is decided against the 4th defendant he (the appellant) will be responsible to the 4th defendant. The appellant was, however, content to let the suit go on without appearing at the hearing and to trust to the 4th defendant to contest the suit as he pleased. The 4th defendant could have consented to a decree in the absence of the 2nd defendant. He could equally consent to the section of the arbitrator as the Tribunal which was to adjudicate upon the matters in difference. It seems to me that the appellant cannot be said in the circumstances of this case to be interested in the arbitration between the other parties to the suit, or interfere with the arbitration so far as they were concerned.
3. The decree should, in my opinion therefore, be modified to the extent to which it is conceded that it ought to be modified. Otherwise the second appeal should be dismissed with costs.
4. In this case a preliminary objection is raised that under paragraph 16(2) of the Second Schedule of the Civil Procedure Code, no appeal lies as the decree appealed against is not in excess of, and is in accordance with, the award in the suit. The suit is for recovery of certain properties purchased by the plaintiff and trespassed upon by the defendants Nos. 1, 2 and 3. The 1st defendant raised various pleas, and said that the properties had been sold to the 4th defendant who was, thereupon, impleaded and adopted the first defendant's defence. The 1st defendant died. Defendants Nos. 2 and 3 are his legal representatives. Defendants Nos. 2 and 3 remained ex parte throughout. The plaintiff and the 4th defendant agreed to refer the suit to arbitration and the decree appealed against was passed on the subsequent award. The 2nd defendant alone now appeals on the ground that the decree is not binding upon him, as he was not a party to the arbitration and consequently there is no award based in law, and the decree based upon it is also invalid, Prior to the Privy Council ruling in Ghulam Khan v. Muhammad Hassan 29 I.A. 51 : 6 C.W.N. 226 : 12 M.L.J. 77 Courts had held that an appeal did lie in cases when there was no award valid in law as for instance, in Husananna v. Linganna 18 M.k 423 and Ibrahim Ali v. Mohsin Ali 18 A.s 422. 'The facts of the case reported in Ghulam Khan v. Muhammad Hassan 6 C.W.N. 226 are not the same as in the present case, and in discussing the question whether an appeal would lie, their Lordships remarked (page 182): 'The Court makes an order of reference on the agreement (which must be the agreement of all parties to the suit) etc., etc.', and it is contended that the ruling applies only to cases in which all the parties to the suit agree in making the reference. The subsequent language of the judgment is, however, very clear (page 183): 'Their Lordships would be doing violence to the plain language and the obvious intention of the Code, if they were to hold that an appeal lies from a decree pronounced under Section 522 (paragraph 15 of the Second Schedule of the Code of Civil Procedure, 1908) except in so far as the decree may be in excess of or not in accordance with the award.' The effect of this ruling has been considered by the Courts in India and it has now been held on its authority, that even when there is no award valid in law, an appeal will not lie except as provided in paragraph 16(2) of the Second Schedule of the Code of Civil Procedure vide Chairman of the Purnea Municipality v. Siva Sankar Ram 33 C.k 891, Kanakku Nagalinga Naick v. Nagalinga Naick 4 Ind. Cas. 871 : 6 M.L.T. 176, Lal Mohan Pal v. Surya Kumar Das 11 C.W.N. 1152, Tallapragada Suryanaraina Row v. Tallapragada Sarabaya 9 Ind. Cas. 173 : (1911) 1 M.W.N. 151, Nidamurthi Krishnamurthi v. Gargiparthi Ganapathilingam (1914) M.W.N. 865, Lutawan v. Lachya 21 Ind. Cas. 989 and Annada Prasad Dutt v. Jogesh Chandra Sen Gupta 23 Ind. Cas. 862.
5. A different view was taken in Haswa v. Mahbub 10 Ind. Cas. 59 and Bangaswami Aiyar v. Swami Aiyar 17 M.L.J. 394; but in neither of these cases was the attention of the Court drawn to the Privy Council ruling in Ghulam Khan v. Muhammad Hassan 29 I.A. 51. It is thus clear that under the law as it now stands, no appeal will lie in the present case. Further in the present case, the appellant has no equitable claim to set aside the decree, for, by remaining ex, parte, he left the conduct of the suit in the hands of the Court, and it is really immaterial to him whether the suit was decreed upon examination of witnesses in Court or upon an award made by arbitrators. By not contesting the suit he submitted to whatever decree might be passed, provided that was not in excess of the relief claimed, and it is doubtful, therefore, whether he was a party interested within the meaning of paragraph 1 of the second Schedule, Code of Civil Procedure, for there was really no matter in difference between him and the plaintiff. If this view is correct, the Privy Council ruling in Ghulam Khan v. Muhammad Hassan 29 I.A. 51 would be still more in point.
6. The exoneration of the appellant from the decree suggested by my learned brother does not in the circumstances appear to be necessary and the 1st respondent's consent to it appeared to me to be conditional.
7. I would, therefore, dismiss the second appeal with costs.
8. The result is that the second appeal is dismissed with costs under Section 98 of the Civil Procedure Code.