1. This is an application Under Section 115, Civil P.C, by a plaintiff in a partition suit. His case is that he instituted a partition suit in 1932 in the Court of the Subordinate Judge, Sylhet; defendant 1 alone contested the suit. After certain adjournments the parties on 1st March 1933 obtained time by a joint petition filed on the ground that there was a talk of compromise. The Court thereupon adjourned the case to 26th March when there was no petition of compromise. On the prayer of the parties the case was fixed for 12th April for hearing. On that date the contesting defendant filed a petition stating that the parties had referred the matter to certain arbitrators and that the arbitrators had given an award which he prayed might be accepted by the Court. The plaintiff stated that he had not agreed to the arbitration as stated by the defendant. The trial Court held that as the parties did not agree that they had compromised the matter it was the duty of the Court to hear the suit on the merits. Against that decision an appeal was made to the Court of the District Judge and the learned District Judge has reversed the decision of the Subordinate Judge and directed the Subordinate Judge to take such evidence as may be adduced by the parties and decide the question whether the matter had been referred to arbitration by the parties, and whether the arbitrators had given a proper award. Against that order this petition has been made.
2. The learned Advocate for the petitioner has cited the cases Dekari Tea Co., Ltd. v. Indian General Steam Navigation Co. Ltd. AIR 1921 Cal 238, Amar Chand Chamaria v. Banwari Lall Rakshit AIR 1922 Cal 404 and Guimoni Dassi v. Tarini Charan : AIR1927Cal887 in support of the proposition that an award made on a reference to arbitration without the intervention of the Court during the pendency of a suit cannot be enforced unless consented to by both parties. The learned advocate for the opposite party has quoted the Pull Bench cases in Gajendra Singh v. Durga Kumari : AIR1925All503 , Chand-basappa Garusantappa v. Basalinggayya Gokurnaya AIR 1927 Bom 565 and Subbaraju v. Venkataramaraju AIR 1928 Mad 1025 in support of the proposition that the view taken by this High Court is wrong and that it is open to the Court to hear evidence whether the parties have compromised the matter Under Order 23, Rule 3. Upon consideration of all the cases cited before us we are of opinion that we should follow the decision cited before us of this High Court. We may state that the decision of our Court appears to us to be in the spirit of the Code. It does not appear on a plain view that Order 23, Rule 3 can mean a reference to arbitrators for an award. The words are
where . . . the suit has been adjusted wholly or in part by any lawful agreement or compromise.. . .
3. Reference to arbitrators and an award given by the arbitrators which award is not accepted by the parties do not appear on a plain view to come within the meaning of Order 23, Rule 3. The rule appears to mean that the Court shall give effect to the agreement or compromise when the parties in an open Court agree to the same. If one party states that he compromised the matter out of Court, and the other party denies the same it is in our opinion, not the duty of the Court to stay the suit and to proceed to hear evidence on the fresh issue whether the parties out of Court had made a lawful agreement or not. If that were permitted, the law's delay which is already excessive, would be enormously increased. We prefer to follow the decision of our Court in the cases cited above.
4. It was lastly urged by the learned advocate for the opposite party that at best it is only an error of law on the part of the Court of appeal below and as there is no question of jurisdiction we ought not to interfere Under Section 115. That section refers to any action in the exercise of jurisdiction illegally or with material irregularity. In this case, we are clearly of opinion that the order of the trial Court was correct in law and that the lower appellate Court committed an error in law reversing that order. In the result, this rule is made absolute, the order of the Court of appeal below is set aside and the order of the trial Court restored. The petitioner will get his costs in this Court the hearing fee being assessed at two gold mohurs.