1. In this case the appeal must be allowed. The question is whether the order of 17th February 1931 should be set aside.
2. There were two cross-suits and the appellant before us was a member of a firm which was the plaintiff in one suit and the defendant in the other. The name of the firm is Raj Kishore Prosad Rajendra Prosad and the appellant before us is Rajendra Prosad.
3. It seems that the suits were in the Peremptory list on 17th February before Buckland, J., and it further seems that an application under Schedule 2, Civil P. C, was put in signed by the attorney of this firm Raj Kishore Prosad Rajendra Prosad, and also signed, I think, by the partner Raj Kishore. Rajendra Prosad says that he was not at any time informed of nor was his consent obtained to any proposal that the suits would be referred to arbitration. He says therefore that this order is bad both under Schedule 2, Civil P. C, and under the general law. Whether it is quite in consonance with the modern conditions of law is a question of opinion; but there can be no doubt that under the Common law of England it is not a part of the authority of one partner of a firm to refer a suit to which the firm is a party to arbitration. His prima facie authority does not extend so far. The question under Schedule 2 has been considered in the case of Gopal Das v. Baijnath : AIR1926All238 . It has to be observed that the order in the present case is an order of reference to the solicitors of both sides as arbitrators with Mr. H. D. Bose, learned Counsel as umpire in case of difference. I am of opinion that that was prima facie a consent which Raj Kishore had no right to give as against his partner Rajendra Prosad. It is quite true that the attorney was acting for the firm and had the authority of all the partners for the purpose of conducting the suits but it is not true that the authority of a partner instructing him included an authority to refer the matter to arbitration, still less an authority to refer the matter to the arbitration of the attorney, In these circumstances, it has been contended before us that the reference can be supported on the ground that the attorney had engaged counsel. I am quite satisfied ion the facts of this case that this is not a case where learned Counsel in the course of his handling the case thought it fit or proper to agree to refer the matter to arbitration. I am not satisfied that the learned Counsel did more- than come in before the learned Judge to put before him the application for a reference which the attorney instructed him to submit. It has been said that the appellant before us has not taken very quick steps to repudiate this order which it seems came to his notice in time. On 20th February it is said that he knew of the order and he appeared on 14th March before the arbitrators and asked for time and on 18th March he made up his mind to repudiate, But it seems to me that the appellant was entitled to some little time to turn round and to find out the exact position at law as regards the right of one partner to bind the other in the matter. I cannot say that there is any good reason for refusing the partner the order which he seeks.
4. The appeal must be allowed. The order of the learned Judge must be set aside and instead thereof there will be an order setting aside the order of reference made by Buckland, J. Having regard to the origin of this matter, I think that Panna Lal-Champa Lal should get their costs before the learned Judge, but each party will pay its own costs of this appeal.
5. I agree.