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Judgment
Kumaraswami Sastri, J.—This appeal arises out of a suit for partition fried by the plaintiff. A preliminary decree was passed on 2nd
December 1924. After the preliminary decree there were some proceedings for getting a final decree and after examination of two witnesses the
plaintiff and defendant 1 filed a statement agreeing to abide by the decision of defendant 3. This was on 28th October 1925. The suit was
adjourned, and no time was fixed. On 18th November 1925, the commission was revoked as the commissioner who had been appointed under
the preliminary decree did not submit his report. One witness was examined on 28th November 1925, and his statement of account Ex. A was put
id. Defendant 1 put in an application on 30th November 1925 stating that defendant 3 had got his report or award ready and wanted a decree in
terms of that. It is clear from the records that there was no such decision then ready. What happened was that on 22nd December, what is called
an award or list of division was filed by defendant 3. No notice of this was given to the plaintiff nor was any day fixed for the filing of objections.
On the next day a final decree was passed in terms of the award.
The appellant who is the plaintiff contends that the whole procedure is illegal, that a reference to arbitration could not under Schedule 2, Civil
P.C. be made unless all the parties consent, that in this case, admittedly defendants 4 and. 2 did not consent, that under the Code some time has to
be fixed for the return of the award and in this case no time was fixed, that under the Limitation Act he has got ten days time to file objections, but
in this case no such time was given and there was no notice given of the filing of the award and so treating it as an award it is invalid both at its
inception and in the procedure adopted for its being incorporated in the final decree.
For the respondents, defendants 1 and if, it is contended that there was no reference to arbitration, that under the preliminary decree itself a
commission way appointed with duties specified in it, that the commissioner did not carry out his work; that that commission was superseded by an
order of Court dated 18th November 1925, and that what really happened was that defendant 3 was appointed commissioner in place of the old
commissioner and that the report which he sent was not really an award but only a commissioner''s report. Unfortunately there is nothing in the
record to show that defendant 3 was appointed either as an arbitrator or as commissioner. On the whole the course adopted by the lower Court
seems to be, if we may say so, not in accordance with any of the provisions of the Code. If the Court wanted to appoint an arbitrator under
Schedule 2, Civil P.C. it was bound to pass an order to that effect and fix a date for the return of the award and also fix a date for objections being
filed. What really seems to have been done in this case is that immediately after the report was filed on 22nd December 1925 without any further
trial the Court passed a final decree in terms of that report This we consider to be wholly irregular whether we consider it as an award or as
commissioner''s report. We do not think that it is capable of being ''treated as an award and the respondents did not contend that it is an award
and it was therefore merely a commissioner''s report.
We think that the whole proceedings which led to the passing of the final decree must be set aside and we direct that the matter be disposed of
by the Judge by appointing a commissioner afresh and giving the parties the usual time to file objections and dispose of the case according to law.
The costs will abide and follow the result. The court-fee will be refunded.
No order is necessary on the civil revision petition.