1. This appeal arises out of a suit for declaration of the plaintiff's title to certain lands and for recovery of possession. During the pendency of the suit, a composition was arrived at between the parties in criminal proceedings pending between them, relating apparently, to the same lands. The parties agreed to refer the matter in dispute to the arbitration of the zemindar. When the zamindar gave his award, the defendant, in whose favour the award was made, filed it in Court and prayed that a decree be passed in accordance therewith. The plaintiff refused to abide by the award, making various allegations against the zemindar. The learned Munsif who tried the suit held that the award was an adjustment of the matters in dispute within the meaning of Rule 3, Order 23, Civil P.C., and he passed a decree in accordance with this award.
2. On appeal this decision was reversed on the ground that the above finding on the question of law was erroneous. The learned Subordinate Judge who heard the appeal remanded the suit for trial on the merits. The defendant has appealed to this Court.
3. A preliminary objection is taken on behalf of the respondent that no second appeal lies. This objection is based on Sub-section (3), Section 96, of the Code which provides that no appeal shall lie from a decree passed by the Court with the consent of parties. In the present case, the learned Court of appeal below has held that consent of parties did not exist, and has granted no decree. The objection, threfore, is not maintainable.
4. The only question in the case is whether or not an award made on a reference to arbitration, without the intervention, of the Court, during the pendency of a suit, may be recorded as an adjustment of the matters in dispute under the provisions of Rule 3, Order 23, when one of the parties objects to its being so recorded, This matter has been considered in its various aspects in a series of cases, and no further light can be thrown upon it. There is no judicial pronouncement by a Bench of this Court on the question; but there are two reported decisions of Mr. Justice Rankin, as he then was, sitting on the original side of this Court, namely the cases of the Dekari Tea Co., Ltd. v. Assam Bengal Ry. Co. A.I.R. 1921 Cal. 238 and Aniar Chand Chamaria v. Banwari Lall Rakshit A.I.R. 1922 Cal. 404. In both these cases, the learned Judge held that an award made on a reference to arbitration during the pendency of a suit neither made under the Schedule 2, Civil P.C., nor under the Arbitration Act could not be enforced in the suit, In the second case mentioned above, his Lordship expressed his disagreement with the view taken by the, High Court of Bombay in the case of Manilal Motilal v. Gokaldas Rowji A.I.R. 1921 Bom. 310 that such a submission could be enforced in the suit under the general law of contract.
5. There is practically universal agreement that Section 89, Civil P.C., is a bar to the enforcement of the award as such, although Fawcett, J., in the case of Manilal Motilal v. Gokuldas Rowji A.I.R. 1921 Bom. 310 followed the dictum of Davar, J. in Harakhbai v. Jamnabai  37 Bom. 639, that Rule 3, Order 23, came within the meaning of the words any other law for the time being in force' in Section 89, Civil P.C. With all respect to the learned Judge, I agree with the contrary view taken in the same case by Macleod, C.J., and the reasons given by him.
6. As regards the view that, in spite of the provisions of Section 88, an award made on a reference to arbitration during the pendency of a suit is enforceable under the general law of contract, it seems to me that there are strong reasons against its acceptance. As has been pointed out by Rankin, J., in Amar Chand Chamaria v. Banwari Lall Rakshit A.I.R. 1922 Cal. 404 and by Macleod., C.J., in Shavaksha Dinsha Davar v. Tyab Haji Ayub  40 Bom. 386, the code makes elaborate provisions for the control by the Court of proceedings in arbitration held on a reference through the Court, and it is inconceivable that the legislature intended that it should be open to the parties to cast aside these provisions and carry on the proceedings in any way they choose. Of course, if the parties agree about the result of the proceedings there is an end of the matter; but if they do not, the fact that the proceedings are illegal nullifies the award of the arbitrator. If, indeed, the view expressed in the case of Manilal Motilal v. Gokaldas Bowji A.I.R. 1921 Bom. 310, ware correct, an award made in such circumstances should be enforced even if both parties objected to it. Such was the case in Ghulam Khan v. Muhammed Hassan  29 Cal. 167. Their Lordships of the Judicial Committee have laid it down very clearly in that case, that once a suit has been instituted all proceedings in arbitration are subject to the control of the Court. It is not permissible to the parties to deprive the Court of its jurisdiction by private reference to arbitration; and no award made on such reference, unless consented to by both parties can be enforced in the suit.
7. The view of the law taken by the learned Subordinate Judge is correct. This appeal is, accordingly, dismissed with costs.
8. I agree.