1. This is an application in revision under Section 115, C. P. C.

2. The parties in this case referred the matter to arbitration and it was agreed that the arbitrator would have full power to take evidence of the parties or to decide in any manner that he liked after hearing the parties, and the parties would have no objection. It was further provided that the arbitrator shall be entitled to use his own personal knowledge or make enquiry or take evidence secretly or decide even without taking evidence.

3. The reference thus was in the widest possible terms.

4. Objection was taken on behalf of the plaintiff that he was not bound by this award because the arbitrator had relied on a certain report of an overseer. Both the Courts below have come to this finding that the report of the overseer was not admissible and, therefore the arbitrator judicially misconducted himself and on that ground they set aside the award. Aggrieved with that decision the defendant has come to this Court.

5. Learned counsel for the applicant argues that since the reference gave the power to the arbitrator to decide in any manner that be liked, and if he has acted on that report he has committed no judicial misconduct. In Husain Bakhsh v. Lachhman Das Mathra Das, 20 All LJ 125: (AIR 1922 All 69) (A), a Bench of this Court had occasion to consider a very similar case.

The misconduct alleged against the arbitrator in that case was that he had made private enquiries in the subject matter of the dispute behind the back of the parties and in that case the applicant in revision contended that the parties had expressly authorised the arbitrator to arrive at a decision either on his own personal knowledge or in whatever manner he thought proper. The bench held in that case,

"on an examination it becomes clear that this was so; the parties expressly stated as much when they certified before the trial Court their agreement to refer to arbitration."

6. On that finding the bench came to this conclusion :

"In thus ignoring the terms of the agreement of reference the Court below has, in my opinion, acted illegally and with material irregularity; by so doing it has assumed jurisdiction about a suit which the parties had removed from its cognisance and made over, unconditionally, to the arbitration tribunal of their own choice. In my opinion the case falls within the revisional jurisdiction of this Court. I would, therefore, set aside the order complained of and send back the case to the Court below to have a decree prepared in accordance with the award."

There would have been no difficulty in arriving at a decision in the light of the above bench decision of this Court. But in a Full Bench decision, Govind Das v. Mt. Indrawati, AIR 1938 All 557 (B), it was held that an order superseding an arbitration or setting aside an award was not a case decided. At the time when that decision was given the arbitration proceedings were governed by the provisions of Schedule II of the Code of Civil Procedure, and when many of the orders passed in arbitration proceedings were not appealable.

After the coming into operation of Act 10 of 1940, Section 39 provides many of the orders against which an appeal lies and among them is an order setting aside an award. If an order has been made appealable, in my opinion, it would certainly amount to a case decided. I would be personally inclined to take the view that this could be revised. As there would be no right of appeal from my decision, this being only a revision, and as it involves an important, question of law, and the effect on the Full Bench decision of the coming into operation of act 10 of 1940 has to be seen, I would refer this case to a bench of two Judges.

7. Let the papers of this case be put up before the Hon'ble the Chief Justice for constitution of a bench.

ORDER M.C. Desai, J.

8. This is an application in revision under Section 115, C. P. C, against an order of the District Judge of Shahjahanpur dismissing an appeal from an order of Munsif, Shahjahanpur setting aside an award made by an arbitrator in a pending suit. The suit was instituted by the opposite party against the applicant for damages for wrongful possession. During the pendency of the suit the parties got the subject matter in dispute referred to the arbitration of Sri Sunder Lal, Advocate.

Under the reference to arbitration the arbitrator was given the powers to adjudicate the subject-matter in dispute after taking evidence of the parties, to decide in any manner that he liked after hearing the parties, to use his own personal knowledge, to make an inquiry or take evidence secretly and to adjudicate even without taking evidence. The parties produced oral and documentary evidence before him.

At the applicant's instance he summoned a document from a Cantonment Board, made his award on its basis and returned it to the Canton-ment Board without placing a copy of it in the record. The document was a report of a surveyor-draftsman employed by the Cantonment Board. He was required to find out how much area of plot No. 7 was cultivated. Plot No. 7 was leased out by the Cantonment Board to the applicant, while the adjacent plots Nos. 5 and 6 were leased out to the opposite party and the latter's contention in the suit was that the applicant had encroached upon his plots.

In the report the surveyor-draftsman only stated that the cultivated area of plot No. 7 was so much. He did not measure it or the adjacent plots Nos. 5 and 6 to ascertain whether their area on the spot was correct according to the map. The arbitrator relied upon the report as showing that the area of plot No. 7 was correct according to the map and that no area of any adjacent plots had been included in it. Accordingly he held that the applicant had not encroached upon any land of the opposite party and made an award rejecting the opposite party's claim.

9. An objection against the award was filed by the opposite party on the grounds that the arbitrator had misconducted the proceedings and that the award had been improperly procured. The learned Munsif held that the report of the surveyor-draftsman did and 6 had been included in plot No. 55 because he had not measured any of the three plots and that consequently it could not form the basis of an award. He held that the arbitrator misconducted the proceedings by passing the award on it. He was not satisfied that the other ground on which the award was attacked was made out. He set aside the award and proceeded to dispose of the suit on merits.

10. The applicant preferred an appeal against the learned Munsif's order setting aside the award. It was dismissed by the learned District Judge by the impugned order. He confirmed the findings of the learned Munsif and held that the report of the surveyor-draftsman was irrelevant and that the arbitrator misconducted the proceedings by relying upon it and drawing unwarranted inferences from it.

11. This application came up for hearing before our brother V. D. Bhargava. An objection was raised by the opposite party against the maintainability of the revision application and in support AIR 1938 All 557 (B), was cited. Our learned brother was inclined to the view that an order setting aside an award amounts to a case decided and can be revised under Section 115, C. P. C. but Govind Das v. Indrawati (B), decided otherwise and consequently referred the matter to a larger Bench because it involved an important question of law.

12. There are two orders passed in this case, one by the learned Munsif setting aside the award and the other by the learned District Judge dismissing an appeal from the former order; it cannot be doubted that the two are quite distinct orders passed in two distinct cases. The suit was undoubtedly one case and the appeal was another case. The revision application is ambiguously worded and it is not clear against which of the two orders it is directed.

In the heading it is said to have been directed against the order of the learned District Judge, but the relief sought is that both the orders be set aside and both are attacked in the grounds for revision. If the application is directed only against the order of the learned District Judge, it can be dismissed straightway on the simple ground that no question of jurisdiction or irregular exercise of jurisdiction is involved.

The learned District Judge has not refused to exercise jurisdiction of deciding the appeal; he has assumed jurisdiction and disposed of the appeal on merits. There is no allegation that he committed any irregularity whatsoever in exercise of his jurisdiction. The applicant is really aggrieved by the order of the learned Munsif that it is confirmed by the learned District Judge and the application should have been directed against it. I would not, however, penalise the applicant for wrongly stating in the application that it was directed against the order of the learned District Judge and I would treat it as if it had been directed against the order of the learned Munsif.

13. If by setting aside the award the learned Munsif can be said to have decided a case, this application is undoubtedly maintainable. If on the other hand he did not decide any case when he allowed the objection of the opposite party and set aside the award, the application will not lie under Section 115.

14. The learned Munsif was trying a suit in which the parties got the subject matter in dispute referred to arbitration. The arbitrator gave the award and the parties had a right to apply to the Court for its being set aside on the ground of misconduct. Accordingly the opposite party made the application and the learned Munsif allowed it. After setting aside the award he was bound to proceed with the suit and is now proceeding with it.

What we have to determine is whether the proceeding commencing on the opposite party's objection against the award and terminating with the order of the learned Munsif setting it aside is a case. A revision application lies only against an order by which a case is decided; no revision lies against an order which does not decide a case. Consequently when one has to adjudicate whether there is a case decided or not, the correct way to pro-ceed is to find out what proceeding was termi-nated by the impugned order and then exa-mine whether it amounts to a case.

"Case" is a more comprehensive term than "Suit". A suit is always a case, but a case includes within its meaning not only a suit but also a proceeding which is not a suit. Any order by which a suit is terminated is an order deciding a case, capable of being revised under Section 115; there is no difficulty as regards this. An order terminating a proceeding when no suit is pending also is an order deciding a case, even though the proceeding may be connected with a suit that is anticipated or a suit that has already been disposed of.

A proceeding in an appeal, a proceeding in an application for a review., a proceeding for correction of an error under Section 152, C. P. C. a proceeding under Order 9, C. P. C. for the setting aside of an ex parte decree or restoration of a suit etc. are all 'cases' so also an application to sue as a pauper. The difficulty arises, when an order is passed in a pending suit, The suit itself is a case, but an order that is passed during its pendency may be one which terminates a proceeding that is not included in the proceedings comprising the suit, though connected with it.

There are certain proceedings which are essential in every suit and are to be taken in a definite sequence laid down in the Code; each proceeding taken advances the termination of the suit. They are, issuing a summons to the defendant, receiving his written statement, settling issues, receiving evidence and hearing the parties. In particular circumstances some of these proceedings may be skipped, for instance when the defendant is absent, issues may not be framed and the Court may at once proceed to record evidence, or when he admits the plaintiffs claim, issues may not be framed and evidence may not be recorded and the Court may at once pronounce judgment; but it does not disprove that they are essential proceedings in a suit. Passing an order in respect of any of these proceedings cannot be said to amount to deciding a case distinct from the suit itself.

It is evident that if these proceedings amounted to a "case" or "cases" there would be nothing left to constitute the suit proceedings. The suit proceeding itself consists of these proceedings. But there are other proceedings taken in a pending suit which do not form its essential components and orders terminating those proceedings will amount to "cases" decided. For instance, orders passed on an application for injunction under Order 39, or appointment of a receiver under Order 40, or attachment before judgment under Order 38, etc. A suit can proceed, and can be disposed of, without these proceedings being taken at all. It is not necessary to take any of them in order to dispose of the suit, i.e. they do not advance the termination of the suit.

15. The matter has been discussed by a Full Bench of this Court in Ramrichpal Singh v. Dayanand Sarup, AIR 1955 All 309 (C). The question referred to the Full Bench was whether an order refusing to stay proceedings in a suit under Section 10, C. P. C. decides any case and it was answered in the affirmative by all the members of the Court. In the leading Judgment Malik, C. J. held as follows :

1. There are proceedings other than suits which are "cases" within the meaning of Section 115;

2. an order does not necessarily decide a "case" merely because it decides any matter in controversy;

3. proceedings not in pending suits, though connected with suits to be instituted in future or with suits already disposed of, are "cases";

4. proceedings which are distinct and separable from a suit proceeding are ''cases";

5. proceedings in a pending suit terminated by interlocutory orders against which a right of appeal has been granted are "cases";

6. proceedings in pending suits terminated by orders, though not appealable, or allowed to be challenged in an appeal from the final decree in the suit under Section 105, may be "cases" or may not be;

7. proceedings terminated by other orders which are entirely procedural or routine are not "cases"; and

8. interlocutory orders finally disposing of proceedings by deciding substantial questions affecting rights of the parties are "cases".

16. Agarwala, J. agreeing with the learned Chief Justice observed at p. 314 that a decision of any issue arising out of the defence in respect of matters mentioned in Order 8 cannot amount to a decision of a case.

17. When in a suit the parties agree to refer to arbitration any matter in difference, the Court makes a reference to the arbitrator under Section 21 of the Arbitration Act. The Arbitrator then makes the award and files it in the Court under Section 14 and the Court gives notice of the filing to the parties. Any party can apply to the Court under Section 33 for the setting aside of the award. If no application has been filed within the prescribed period and the Court does not remit the award, it is required to pronounce judgment according to it, vide Section 17, and a decree will follow.

If the award is set aside, the Court will proceed to dispose of the suit if there has been no agreement for reference to arbitration. Reading the provisions of the Code of Civil, Procedure and the Arbitration Act together one finds that in a suit in which there has been an agreement for reference to arbitration, the proceedings mentioned in Sections 22, 23, 14, 16, 17 and 33 are essential parts of the suit itself; each proceeding advances the termination of the suit and it cannot proceed unless those proceedings are taken one after another.

It means that all these proceedings con-stitute the suit itself and not a "case" distinct from the suit. When the award is filed in the Court, it is a part of the proceeding in the suit itself, a notice of it should be given and the Court should dispose of objections against the award and decide whether it should be set aside, modified or remitted or confirmed. Setting it aside is nothing more or less than a decision of a preliminary issue in the suit.

On the award being set aside the Court will proceed to dispose of the issues arising between the parties on merits. If the award was not set aside and was not remitted or modified, the Court would have to pronounce a judgment just as it pronounces a judgment on deciding a preliminary issue. The proceedings under Sections 14, 15, 16, 17 and 33 etc. of the Arbitration Act cannot be separated from the suit; further progress in the suit and the final judgment in the suit depend upon the results of the proceedings.

The proceedings cannot be compared with proceedings under Order 38, 39, 40 and 47, C. P. C. It makes no difference at all that the proceedings are under the Arbitration Act and not under the Code of Civil Procedure. The proceeding in a suit is ordinarily governed by the Code of Civil Procedure, but in particular circumstances it may be governed by other Acts. The Arbitration Act is as much a law as the Code of Civil Procedure; previously the provisions of the arbitration act formed part of the Code. There is nothing incongruous in a proceeding in a suit being governed partly by the Arbitration Act.

18. With great respect I do not agree with the observation of our learned brother that an appealable order passed in a proceeding amounts to a decision of a case. There is nothing in the Code to suggest that the meaning of the word "case" used in it has any connection with the question whether an appeal lies against an order terminating the proceeding. I cannot see any greater reason for holding that a proceeding is a "case" because it is terminated by an appealable order than for holding that a proceeding is a "case" if it is terminated by a non-appealable order.

An appeal is interference with an order passed by an inferior Court; a revision under Section 115 also is interference with an order passed by an inferior Court. But merely because both amount to interference with the order, it cannot be contended that if interference through an appeal is provided for by the Legislature interference by a revision also is intended to be provided and that consequently the proceeding amounts to a "case".

When the Legislature provides for an appeal from an order, it not only indicates that it intended the order to be liable to be interfered with but also provides for the manner in which it can be interfered with and it would be illogical to go further and say that it intends interference with the order in another way also, viz. through revision. Similarly when it does not provide for an appeal, it only means that it does not contemplate interference through an appeal, but it does not necessarily follow that it does not contemplate interference through a revision application.

Moreover, the right of appeal from an order is conferred not only by the Legislature as in Section 104(ff) and (g) but also by the High Court through amendments in Order 43. There are no principles laid down guiding the discretion of the High Court in providing for appeals from orders; any order can be made appealable or non-appealable. Surely whether a proceeding is a "case' or not cannot depend upon whether the order finally passed in it is made appealable or non-appealable by the High Court; there is no connection between the discretion of the High Court and the question whether the proceeding is a "case" or not within the meaning of the Code.

The nature of the proceeding cannot vary from time to time or territory to territory; a proceeding cannot be a case on one day and cease to be a case on the next day, or cannot be a case in Bombay and not be a case in Madras. It is laid down in section 105 of the code that no appeal shall he from an order made by a Court other than the orders mentioned in Section 104 and that where a decree is appealed from any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

Since an order can be challenged on the ground of any error, defect or irregularity in an appeal from the decree, the Legislature has not provided for a right of appeal from the order; it does not favour piecemeal appeals. An error, defect or irregularity in an order not affecting the decision of a case cannot be challenged in an appeal from the decree and, therefore, there may be justification for providing for a right of appeal from such an order. That is why appeals have been provided for from orders passed under Orders 38, 39, 40, etc, There is another counter-vailing principle which also is kept in mind by the Legislature and it is that interference with an order on the ground of an error, defect, or irregularity may be provided for at an early stage so that the error, defect or irregularity may be removed or cured before the parties incur expenditure and spend time in further proceedings in the suit. In some cases one principle gives way to the other, in others the reverse happens; but which principle should give way to the other does not depend upon whether the proceeding terminated by the order amounts to a "case" within the meaning of Section 115 or not.

In the case of Ramrichpal Singh v. Daya-nand Sarup (C) (supra), the learned Chief Justice laid down that proceedings disposed of by the orders made appealable under Section 104 may be treated as "cases"; but that is not because there is something inherent in the fact that the orders are appealable which decides the nature of the proceedings, but because they are either suit proceedings terminated by the orders or proceedings which are distinct from the suit proceedings.

19. Govind Das v. Indrawati (B) (supra), was decided before the Arbitration Act of 1940 was enacted. The facts in the case were quite similar to those in the present case; there was a reference to arbitration in a pending suit, the award was set aside by the Court and it proceeded to dispose of the suit on its merits. It was held by a Full Bench that the proceeding in which the award was set aside did not amount to a "case" and that the order setting aside the award was not revisable.

As I pointed out earlier the distinction that the proceedings in the present case are governed by the Arbitration Act whereas the proceedings in the case of Govind Das (B), were governed by the Civil Procedure Code is entirely irrelevant to the question whether they amount to a "case" or not. Bennet, J., in passing, referred to the fact that the Code did not provide for an appeal from the order and inferred that the Legislature did not intend any interference with it. With great respect I do not see how it follows further that the proceeding, did not amount to a "case".

20. In State v. Abdul Aziz, AIR 1955 All 673 (D), the trial Court held that the arbitration clause did not apply to the dispute which was the subject matter of the suit and that consequently the suit could proceed. The defendant went up in revision and a Bench of this Court rejected the application, laying down that the decision that the arbitration clause did not bar the suit was a decision of an issue properly arising on the pleadings in the suit.

21. I should not say anything about the merits lest it should prejudice one party or the other when an appeal is filed from the decree that will be passed in the suit. If the suit is decreed against the applicant and he prefers an appeal from it, it will be open to him to challenge the decree inter alia on the ground that the award could not be set aside on the ground on which he hag filed this revision application.

22. I am satisfied that the proceeding started on the opposite party's objection against the award and terminated by the order assailed before us was not a "case"; hence this application does not He and should be dismiss-ed with costs.

J.N. Takru, J.

23. I agree & have nothing to add.