N.R. Chatterjea, J.
1. This matter comes up before us on appeal and upon an application for revision under Section 115 of the Code under the following circumstances.
2. The plaintiffs instituted a suit for partition of certain moveable and immoveable properties on establishment of their right thereto. On the objection of the defendants, various issues were framed. The case was then referred to the arbitration of several persons on the 24th January 1916. That arbitration, however, fell through and on the 13th May 1916 on the joint application of the parties the suit was again referred to the arbitration of one Gopal Chandra Das, who was to decide all the issues in the case and to submit his award on or before the date fixed, that is, 8th June 1916. The time for submission of the award was extended from time to time. It appears from the order of the 8th July 1916 that the arbitrator did not submit his award nor apply for time. On the 11th July, however, the arbitrator applied for one week's time by a petition in which it was stated: 'I am an arbitrator in the suit. I have been suffering from dementia and heart complaint for a long time. Upon the increase of illness, no power is left in me to move about from one place to another', and the time was allowed. Ultimately an award was submitted on the 17th July 1916. This was followed by another award, in which it was stated that the moveable mentioned in paragraph 2 of the award filed the day before, in which the shares of the parties had been defined by the award, had, no existence, and the first award was accordingly modified by the second. After the second award had been filed, two petitions were submitted by the arbitrator to the Court, setting out the enquiries made by him in connection with the arbitration.
3. It may be pointed out that in the award the arbitrator said: 'I am disclosing the real state of things in the following paragraphs, on perusal whereof you may be pleased to dispose of this suit in accordance thereof.' He did not partition the properties nor did he pass any order as regards the claim for partition. All that he did was to fix the shares of the parties respectively in the properties claimed. After those awards had been filed in Court, the defendants raised an objection, among others, on the ground that all the issues in the case had not been decided.
4. The learned Subordinate Judge was of opinion that the award was valid and directed a decree to be drawn up in accordance therewith. The decree prepared in the case, however, set out both the awards, the second of which, as we have said, modified the first and the plaintiff was allowed to withdraw his claim with regard to partition and accounts.
5. We do not think that the procedure adopted in this case is one which should be allowed. The decree must be in accordance with the award. Here there were two awards, the second modifying the first, and both the awards were set forth in the decree. The claim for partition ought not to have been allowed to be withdrawn as it was not open to one party, after having referred all the matters in dispute to arbitration, to withdraw a partition of the claim without the consent of the other party. The case might have been remitted to the arbitrator for deciding the issues left undecided by him, had that been the only defect; but as stated above the arbitrator made two awards and both the awards are set out in the decree.
6. In these circumstances, we think that the decree and the awards should be set aside and the case tried by the Court below in accordance with law.
7. The claims for partition and accounts appear to have been withdrawn and the plaint amended, only because the awards did not deal with them. As we have set aside the awards and the decree based thereon, the order relating to the amendment of the plaint and withdrawal of the said claims will be set aside and the suit will be tried upon the plaints as originally framed.
8. We make no order as to costs in this appeal. The costs of the Court below will abide the result.
9. I agree.