1. This appeal is directed against an order superseding an award of arbitrators. It appears that the plaintiffs, who are the respondents before us, instituted a suit for accounts and other reliefs against three persons Debendra, Siva Sundari and Bapin. This was Suit No. 88 of 1913. There was another suit (Suit No. 187) instituted against Debendra alone for contribution. Pending the suits, the plaintiffs and the defendant No. 1 Debendra executed an ekrarnama on the 31st January 1919, by which they appointed three persons as arbitrators for settling all disputes between them. On the 3rd May 1919, a petition was presented to the Court reciting that they had appointed three Pleaders as arbitrators. They prayed that the Court might be pleased to appoint them as arbitrators and to send the records of the suits to them. It was further stated that all the terms regarding the manner in which the arbitrators were to settle the disputes, had been embodied in a separate ekramama and that both parties would be bound by the award which might be passed by the arbitrators. The arbitrators gave their award on the 16th August 1919, by which they dismissed both the suits of the plaintiffs. On the 25th August 1919 an objection was taken to the award on behalf of the plaintiffs and on the 25th February 1920 certain additional objection was taken. The Court below held that as all the parties to the suit did not join in the arbitration, the award was void and accordingly set it aside. Defendant No. 1 has appealed to this Court.
2. It appears that defendants Nos. 2 and 3, Siva Sundari and Bepin, were no parties to the ekramama appointing the arbitrators. The petition to the Court below for reference to arbitration dated the 3rd May 1919 was filed on behalf of the plaintiffs on the one hand and only the defendant No. 1 on the other, and they were the only parties to the ekramama. That being so, all the persons interested in Suit No. 88 did not agree to refer the matter to arbitration. We are, accordingly, of opinion that the question whether under the vakalatnamas the Pleader for Siva Sundari and Bepin had implied authority to refer the matter to arbitration, did not arise as there was no consent of all the parties interested. That being so, the order of the Court below, setting aside the award in Suit No. 88, will stand.
3. It is contended, however, by the learned Pleader for the appellant that the award was made upon a private agreement between the plaintiffs and the defendant No. 1 and that as an application was actually made for filing the award of the arbitrators, that application should be gone into in the present suit. It is contended on the other hand on behalf of the respondents that that application was not made in the present suit and that the decision in the present appeal cannot prevent the defendant No. 1 from setting up the award as an adjustment of the suit. We think that this contention of the learned Pleader for the respondents is correct and we, accordingly, hold that the question raised in that application for filing the award cannot be gone into in the present proceeding. But this decision will not prevent the defendant No. 1 from pleading the award of the arbitrators upon the registered ekramama as a lawful adjustment of the suit so far as the plaintiffs and the defendant No, 1 are concerned. Appeal No. 122 is dismissed with costs, five gold mohurs.
4. Rule No. 442 of 1920 is discharged.
5. No order as to costs.
6. Rule No. 167 of 1920 was obtained in connection with Suit No. 187 which also had been dismissed in accordance with the award. Certain alleged misconduct of the arbitrators has been brought to our notice : but we do not think that we can interfere in this case under Section 115, Civil Procedure Code.
7. The Rule is accordingly discharged with costs two gold mohurs.