1. This appeal arises out of a suit for possession of a small plot of land measuring about 15 cottahs.
2. The litigants are two brothers and after the filing of the suit there was a reference to arbitration. The arbitrators made an award and a decree followed upon that. There was an appeal against that decree on the ground that the reference itself was bad and no decree could follow upon that award. The Subordinate Judge upheld the decree of the. Munsiff. The present appeal is by the plaintiff and his case is that the decree should be vacated on the ground that the reference to arbitrators was initially illegal and therefore the arbitrators had no jurisdiction to make an award.
3. The facts upon which this contention is put forward are these : The case was filed on the 27th April 1923. On the 28th April 1923 an application was filed in Court by the plaintiff and the defendants which was headed as an 'Agreement to refer'. In that document it was stated that
there are disputes between the parties in connexion with the laud in the above suit as also other lands and to settle disputes with regard to the said suit as also other matters, we do hereby appoint Babu Mohendra Nath Maiti, Srinath Samanta and Basanta Kumar Sarkar, pleaders.
4. In the second paragraph the defendants undertook not to alter the character of the lands in suit until the settlement of the suit and in the third paragraph it was prayed that
orders might be issued upon the arbitrators to settle the present disputes among the plaintiffs and the defendants on the following matters.
5. Then followed several items of disputes. It is unnecessary to state anything further with regard to the provisions of this application just now. Upon that an order was made on the same day by the Munsiff to this effect:
Let the case be referred to the arbitrators Babu Mohendra Nath Maiti, Sriunth Samanta and Basanta Kumar Sarkar as prayed for by the parties.
6. The arbitrators made their award with reference to the suit on the 28th September 1923. On that very day they made another award with regard to matters in dispute, which were referred to in the petition of the 28th of April with regard to matters which were outside the matters in dispute in the suit. That award has not been the subject of any other proceeding in the Court below but it is on the record. Objections were made to the award by the plaintiff and on the 8th of October 1923 those objections were overruled, by the Munsiff and a decree was made in accordance with the award dismissing the suit with costs. The point urged is that the application that was filed by the parties to the suit on the 28th of April 1923 referring to arbitration relates not only to matters in difference in dispute, in the suit but also to various other matters. The reference to arbitration by the Court was illegal and without jurisdiction and we have to decide this short point.
7. Reference has been made to the observations made in the case of Ram Protap Chamria v. Durgaprasad Chamria : AIR1924Cal567 by Mr. Justice Rankin where it is observed:
In my judgment, it is quite impossible that one and the same arbitration should be held as to matters within the jurisdiction of the Court and matters without the jurisdiction of the Court; between the parties to the suit and between them and other persons : under the Code provided by the Indian Arbitration Act and under the Code provided by the second schedule : under the superintendence and control of the Judge who has seisin of the suit and of the Judge disposing of business under the Indian Arbitration Act: partly upon an order of reference and partly under an agreement.
8. It is argued by the appellant that these observations mean that whenever there is an application for reference to arbitration in a suit which is pending in Court under the first paragraph of the second schedule of the Code of Civil Procedure, if it includes other matters which are not the subject-matter of difference in the suit itself, the whole reference is void although the Court might have made an order for reference with regard to the subject matter of the suit alone.
9. It is further argued that the observations of the Privy Council on appeal from the same case in Ram Protap Chamaria v. Durga Prosad Chamaria with reference to the aforesaid observations of Mr. Justice Rankin do not take away from the binding force of those observations. Their Lordships observed after reciting a portion of the observations already cited:
Their Lordships desire to reserve their opinion upon the question whether there may not be exceptions to that comprehensive statement.
10. In our opinion the observations of Mr. Justice Rankin must be taken along with the facts of that case. In that case a reference was made by the parties to the suit as well as persons who were not parties to the suit and it referred to matters in difference in the suit as well as various other matters which concerned persons not parties to the suit, and the award of the arbitrators mixed up all the questions in controversy between the parties to the reference, and it was impossible to detach one set of the award from the other. This would be made clear from the observations of their Lordships of the Judicial Committee which run thus:
In their Lordships' judgment such an award is in no true sense one made in obedience to the order of May 23, 1922, While it would not be easy to segregate the findings with reference to the matters in question in the suit from those not so in question-the findings in which Amardoyi was interested from those in which she was not, it is, their Lordships think, impossible to uphold an award in relation to a suit the conclusions of which were plainly coloured, if not dictated, by the view taken by the arbitrators of other questions between the parties or some of them to which the suit had no reference.
11. I ought to state here that the order of the Court of May 23, 1922, referred to above was an order referring all matters in difference in the suit between the parties to the suit as in the present case. The question, therefore, we have to see is whether the state of facts in the present case is the same as in the case of Chamria y. Chamria : AIR1924Cal567 so as to bring into operation the observations of Eankin, J., limited as they must be, with reference to the opinion of the Judicial Committee. In our opinion, Mr. Justice Rankin made those observations with Reference to the particular facts of the case. We do not think that Mr. Justice Rankin was of opinion that if the parties to the suit applied to the Court for an order of reference with regard to the matters in difference in the suit and on the same day made a reference to arbitration without the intervention of the Court with regard to other matters in dispute between the parties by a separate agreement, the order pf reference made by the Court with regard to the subject matter of the suit can be questioned on the ground of illegality, or invalidity, and if the arbitrators made separate awards with regard to the different matters there is no reason why those awards being otherwise good should not be considered to be enforceable. To go a step further if the parties in their application for reference to arbitration with regard to matters in difference in a suit put in other matters of difference but the Court makes a reference to the arbitrators only with regard to the matters in difference in the suit without any objection of the parties, there is no reason to suppose that such reference should be considered to be illegal.
12. In the present case 1 ought to have stated that the parties in addition to the petition that they filed in Court actually entered into a separate agreement to refer matters in dispute outside the subject matter of the suit to the same arbitrators and the arbitrators acted upon that agreement which they describe as an Abichalnama in their award with regard to those matters. Therefore, the matter stands thus, that the arbitrators made two awards, one with regard to the matters in difference in the suit under the order of reference by the Court, and another which was not with reference to the subject matter of the suit on the strength of the Abichalnama or agreement of the parties. As I have already said the award with regard to the other matters although on the record has not been acted upon in any way. The Subordinate Judge points out that it will be open to the parties if they so desire to take steps with regard to that award under paragraphs 20 and 21 of the second schedule of the Code of Civil Procedure. Our conclusion, therefore, is that the mere fact that other matters were referred to in the application for making the order of reference does not vitiate the order as made by the Court. Then with regard to the question whether the awards can be dealt with separately or the award which is now the subject matter of controversy in this case is so connected with the other award as it may be said to have been plainly coloured by the view taken by the arbitrators on the other questions which they decided by the other award. On going through this award it does not seem to us that it can be so held. There is a passage at the bottom of the award that the arbitrators have not directed the Defendant No. 1 to fill up certain, excavations on another piece of land as that was allotted to the defendant in a separate award. That question of the filling up of the excavations was not the subject matter of the suit and had no connexion with it. The subject matter of the suit was with regard to one half share of 15 cottas of land only. On the grounds set forth above we do not think that the plaintiff can complain that the reference was invalid and without jurisdiction.
13. A preliminary objection was taken before us that there is no second appeal against the decree nor can this Court revise the decree under Section 115 of the Civil P.C. or under Section 107 of the Government of India Act. In the view we take, it is unnecessary to discuss the question in detail but it seems to us that where the jurisdiction of the Court to make the order of reference is attacked, this Court has power to revise the order in revisional jurisdiction and there is an application before us to that effect.
14. However as we take the view that on the merits the appeal fails, this appeal must be dismissed with costs. No other order on the application is necessary.