1. In O.S. No. 208 of 1916 in the District Munsifs Court, Bellary, the plaintiff sued for a declaration that the mortgage by a widow named Subbalakshmiamma and a sale of a house were invalid beyond her life time, he being the reversioner to the estate. The mortgagee purchaser and the decree-holder in a money suit filed against the widow were made parties. The matter was referred to arbitration by order of Court on the consent of the parties. The arbitrators went beyond the scope of the reference and declared the plaintiff to be entitled to obtain immediate possession of the house during the widow's lifetime on payment of Rs. 900 which was not a matter referred to their decision through Court. The Court that tried the suit, therefore, rightly refused to embody that part of the award in its decree. In the present suit the same plaintiff has sued for possession of the house alleging that he has tendered Rs. 900 within the period provided in the award which was one year from the date of the award. The suit was dismissed with costs, the District Munsif holding that there was no consent on the part of the defendant that the arbitrators should settle the question of immediate delivery of the house. Upon appeal the learned Subordinate Judge held that although the question of immediate possession was not a matter referred to the arbitrators through Court yet the allegation in the plaint that the arbitrators were privately asked to decide this question and that the parties agreed to abide by their decision was true. He disagreed with the finding of the District Munsif who believed the evidence given by the defendant and he found as a fact that the defendant accepted the terms of the entire award not only in respect of the matters referred through Court but also in respect of the matters which the parties themselves invited the arbitrators to decide. This is a finding of fact by the Appellate Court which had jurisdiction to decide it and I must accept the finding.
2. The learned Subordinate Judge on the question of law held that this part of the award could be enforced as an agreement between the parties. I think he was right. The decision in Muhammad Mumtaz Ali Khan v. Farhat Ali Khan P.C.J.85 dealt only with an ultra vires award upon a matter which was not referred to arbitration either through Court or otherwise and Rawpratap Chamria v Durgaprasad Chamria (2) may be distinguished on the same ground. These cases do not decide that if there is a private agreement to refer to arbitration and the arbitrators pronounce an award that award cannot be enforced in a subsequent suit.
3. The only other point is whether the plaintiff made a tender of Rs. 900 within one year of the date fixed in the award. It* was found that he gave a notice through his Vakil offering the money unconditionally before the due date and he applied for a challan for remitting Rs. 900 to the treasury on the 10th April 1918 which was the last day for the tender. The Subordinate Judge was, therefore, right in holding that the plaintiff had complied with the condition under which it was agreed in adjustment of the parties' disputes that the plaintiff should pay Rs. 900 and get possession of the property. The second appeal fails and is dismissed with costs. The amount deposited in Court may be paid to the respondent's Vakil in adjustment of the respondent's costs.