1. In this case, the first defendant has appealed from the judgment of the learned Subordinate Judge, dated the 21st September 1911. The case certainly stands on a peculiar footing and, so far as I know, I have never met with such a case before, because it is the common case of all the parties that they came to an agreement which was reduced in writing by which they agreed to refer all matters in dispute between them to the arbitration of certain arbitrators and they asked the learned Judge to refer the matter to the arbitrators named. The learned Judge, however, said, so far as we can see from his order-sheet--Order No. 21 dated the 19th September 1911--that 'the application being untimely is rejected'. The learned Judge might have considered that when the case had taken up so much time of the Court, the application was untimely, but, notwithstanding that,, the learned Judge was bound, by the provisions of the law, if the parties did come to an agreement to refer the matter to arbitration, to send it to be dealt with by the arbitrators. It is quite clear on the provisions set out in the second Schedule to the Code of Civil Procedure that the learned Judge had no discretion in the matter. Notwithstanding that much time of the Court may have been occupied in hearing a case, still the law distinctly gives the parties to a suit the right to have the matter submitted to arbitration, if they come to an agreement to refer it to the arbitrators at any time before the judgment is pronounced. The parties in this case obviously did come to an agreement before the judgment was pronounced and they were entitled to have that matter referred in accordance with Clause (3) of the said second Schedule, which directs the Court, by order, to refer the matter in difference to the arbitrator and to fix a time for making the award. The learned Judge has altogether ignored those provisions of the law. However, it is quite clear in this case that none of the parties to the suit are responsible for the judgment that has been given in favour of the plaintiffs because all the parties requested the learned Judge to refer the matter to the arbitration, but he declined to do so. That being ,so, of course, none of the parties are responsible for the appeal to this Court and the costs both of this Court and of the proceedings in the Court below must abide the result of the award of the arbitrators. All that we can do in this case is to set aside the judgment and decree of the learned Judge in the Court below and direct him to refer the matter to the arbitrators in accordance with the agreement come to between the parties.
2. The defendants Nos. 5 and 6 are merely formal defendants, their mortgage being prior to the mortgage sued upon. Of course their rights do not form the subject matter of the reference to the arbitration.
3. I agree.