1. This is an appeal by the plaintiffs and arises in a suit for partition. There were numerous defendants to the suit; defendants 12 and 14 however, did not enter appearance in the suit; the other defendants filed their written statements and on 2nd April 1925 issues were settled. Nearly a year after, an application was filed by all the parties to the suit except defendants 12 and 14 in which they prayed to the Court for referring the matter in dispute to arbitration. The Court acceded to the application and referred the matter in dispute between the parties to arbitration on 7th April 1926. The arbitrators submitted their award. Some of the defendants objected to the award on the ground that the reference was invalid as all the parties to the suit namely defendants 12 and 14 did not join in the application for reference to arbitration. The objection was overruled by the Subordinate Judge on the ground that defendants 12 and 14 were not interested in the subject-matter of the litigation within the meaning of para 1, Schedule 2, Civil P.C., and relied on the statements of defendants 10, 11 and 13 to the effect that the share of defendants 12 and 14 in the suit lands was transferred in their favour and that they are no longer interested in the disputed lands. He accordingly confirmed the award and decreed the suit in terms of the award.
2. Against this decree two appeals were preferred to the District Judge of Tipperah by defendant 12 and defendants 10, 11, 13, 15, 16, 17, 18 and 23 respectively. The lower appellate Court has set aside the award on the finding that defendants 12 and 14 were interested in a part of the property in suit and as they did not join in the reference to arbitration the Court had no jurisdiction to make the reference. He accordingly remanded the case to the Court of first instance.
3. Against this decision the present appeal has been brought and' it is contended that no appeal lay against the decree of the Subordinate Judge to the District Judge as no appeal lies from a decree passed in accordance with an award and the lower appellate Court acted without jurisdiction in entertaining the appeal and setting aside the decree passed in accordance with the award and reference is made in this connexion to para 16 (2), Schedule 2, Civil P.C. In our opinion this ground is not tenable. For it is conceded in this case that defendants 12 and 14 were interested in a part of the disputed property and as a matter of fact plot No. 1226 in which defendants 12 and 14 are interested had been directed to be partitioned by the arbitrators in their award, and as these persons did not join in the reference there was no valid reference to arbitration and the award was wholly infructuous. In our opinion the Court had no jurisdiction to make the reference and para 16 contemplates an award made in a case where there has been a valid submission to arbitration. The appeal lay to the District Judge as the reference itself is impugned for want of consent of the parties interested. This view is supported by a decision of this Court in Fanindra Nath Roy v. Dwarka Nath Roy  25 C.W.N. 832. It is argued however that whatever view might have been taken with regard to the right of appeal under the Code of 1882 there can be no question that under the Code of 1908 even if the award is invalid by reason of there not having been a proper submission by all the parties interested, no appeal would lie against the decree based on such invalid award and in support of this contention reliance is placed on a decision of the Lahore High Court in the case of Balkishan v. Sohan Singh Ladha Ram A.I.R. 1929 Lah. 476. This decision no doubt supports the contention of the appellant but it dissents from the decision of this Court referred to above. We are bound to follow the decision of our Court in preference to the decision of the Lahore Court. It is plain that before the jurisdiction of the Court to make an order of reference is invoked, there must be an agreement, between all the parties interested, that the matter in difference between them shall be referred to arbitration.
4. In the present case two of the defendants were not parties to the agreement; consequently the Court was not competent to make a valid order of reference. It is also plain that if there is no valid agreement to form the basis of reference in the terms of para. 1, Schedule 2 to the code there is no valid award whereon a decree can be based in accordance with para. 16. It is argued that the words 'otherwise invalid' in Clause (C), para 15, sub-para 1 shows that even if the award was invalid when there is no valid reference to arbitration a decree based on such an invalid award comes within the provision of para l6, Clause 2 and no appeal shall lie on such a decree except in so far as the decree is in excess of the award. We do not agree with this argument for para 15 obviously assumes valid reference to arbitration and only contemplates cases where the propriety of an award on the basis of such a reference is in question. An examination of Clause (c), sub-para 1, para 15 will show that the words 'or being otherwise invalid' must refer to invalidity of the kind referred to in the preceding sentences of the said clause as for instance the award having been made after the issue of an order by the Court superseding the arbitration and proceeding with the suit or after the expiration of the period allowed by the Court. As has been pointed out by Sir Lancelot Sanderson, J., (now of His Majesty's Privy Council) that all the grounds for setting aside the award mentioned in para 15 show that the Act contemplated in the first instance a valid reference : see Dulichand v. Mamuyi Musajee  41 I.C. 295. The following observations in the judgment of their Lordships of the Judicial Committee of the Privy Council in the case of Ram Protap Chamuria v. Durga Prasad Chamria A.I.R. 1925 P.C. 293 furnish another instance of an award which is otherwise invalid. Lord Blanesburgh delivering the judgment of their Lordships said this:
In their Lordships' judgment the decision of this appeal really turns upon the effect of that order property interpreted. It was an order made in pursuance of paras 1 and 2, Sch.2, Civil P.C., 1908, and in the exercise of a power thereby given to the Court to refer to arbitration matters in difference in a suit defined by itself in the order of reference. It is incumbent upon arbitrators acting under such an order strictly to comply with its terms. The Court does not thereby part with its duty to supervise the proceedings of the arbitrators acting under the order. An award made otherwise than in accordance with the authority by the order conferred upon them is, their Lordships cannot doubt, an award which is 'otherwise invalid' and which may accordingly be set aside by the Court under para 15 of the same schedule.
5. These observations suggest that the power is given to the Court to refer to arbitration where the conditions of paras 1 and 2, Schedule 2, Civil P.C. 1908, are fulfilled, and that the words otherwise invalid' must be read ejusdem generis. In our opinion there was no award on which the Court could make a decree. The decree was based on something which) was not an award and was therefore appealable. The view we take is in accordance with the decision of Chatterjee, ,T. and Walmsley, J., in the case of Girja Nath Roy v. Kanai Lal Mitra  43 I.C. 169. In the case of Dulichand v. Mamuji Musajee  41 I.C. 295 referred to above, Mukerjee, J., pointed out that the award based on a reference not contemplated by the Court was inoperative, and that the true view was that that was not a ease of an improper award but of an invalid reference to arbitration, It seems to us that the foundation of the jurisdiction of the Court to make the reference is cut away as soon as it is shown that the parties have failed to comply with the fundamental requirement of the statute embodied in Para. 1, Schedule 2 of the Code. In this view we think that an appeal lay to the District Judge and that his order setting aside the award must be affirmed. The appeal is dismissed with costs to be paid to defendant 12 only. The application is also dismissed.
6. I agree.