1. The contention, raised here at a late stage, that first defendant, who was a 'party interested' was not joined as a party to the reference, and, therefore, the reference was without jurisdiction must, I am afraid, prevail. The lower Court has overlooked that point, but it was never raised before it. It was also not raised in the original grounds of the Civil Revision Petition but by way of additional ground, The first defendant was ex parte in the suit, but he was undoubtedly a party interested at the time of the reference, since the plaintiff's claim was either for specific performance of the contract by first defend ant, or for damages against him. It is strenuously urged that plaintiff by his in action in not taking the point earlier must be deemed to have waived his claim against first defendant, i.e., in. effect to have exonerated him from the suit. But there is nothing on record to substantiate this contention and the frame of the award which; opens with a finding against first defend ant's contention that the sale agreement was nominal shows that the arbitrators had no idea that first defendant was exonerated.
2. The rulings cited before me, Polita Pevama Panda v. Narasinga Panda 51 Ind. Cas. 155 : 42 M. 632 : 36 M.L.J. 538, Subba Rao v. Appadurai Iyer : AIR1925Mad621 and Parasurama Mudaliar v. Muthuswami Pillai 91 Ind. Cas. 313 : 22 L.W. 395 : (1925) M.W.N. 744 : A.I.R. 1925 Mad. 1209 : 50 M.L.J. 100 are authorities for the plaintiff's contention and for the position that the objection can be taken by any party to the award and that the omission to make an ex parte defendant a party to the award is fatal to the jurisdiction of the arbitrators to make an award. The case of Pasumarti Bhagavanulu v. Bollan Seetharamaswami : (1923)44MLJ359 is not a case of 'ex parte' party but of an exonerated party. It will not do any good to either party for the Court to refuse to set aside in revision an award which is wholly void. But in. view of the last stage in which the objection is put forward, I do so with reluctance and consider that plaintiff should have no costs. I set aside the award as made without jurisdiction. Each party will pay his own costs here and below. The suit will have to be re-tried.