Ashworth, J.:— This is an appeal by two persons against whom a decree has been given according to an arbitration award. One of the appellants was no party to the application for reference. After the award was made by the arbitrators he filed an objection to it on this ground. That objection was rejected by the trial Judge on the ground that he had been absent up to the time when the award was given. It is argued that paragraph 16(2) of the second schedule to the Code of Civil Procedure debars him from getting up as a ground of appeal the fact that he was no party to the reference. Paragraph 16 states that where a court sees no cause to remit an award and no application has been made to set aside the award or the court has refused such application the court shall, after the time for making such application, proceed to pronounce judgement according to the award. Sub-clause (2) of that paragraph provides that upon the judgement so pronounced a decree shall follow and no appeal shall be from such decree except in so far as the decree, is in excess of or not in accordance with the award. I am prepared to hold in this case that the court had no jurisdiction to refer the subject-matter of the suit to arbitration without the consent of all the parties and I am further prepared to hold that paragraph 15 of the schedule does not apply to an award which has been made upon a reference, to make which the court had no jurisdiction. I construe the second clause of paragraph 16 to mean that once there is an award, a decree based thereon cannot be questioned in appeal except in so far as it is in excess of or is not in accordance with the award. It is another question, however, whether such a decree is liable to revision under section 115 of the Code of Civil Procedure. Where no appeal lies except on grounds which are not available in any particular case, it appears to me that it may be said that in that case no appeal lies. Consequently revision under section 115 is permissible where the jurisdiction of the court passing the decree is called in question, as is the case here. There is abundant authority for holding that a court referring a matter to arbitration at the request of some only of the parties is acting beyond the jurisdiction allowed by the second schedule of the Code of Civil Procedure. Consequently, although I hold that no appeal lies, I hold that we are entitled to deal with the first objection taken in this memorandum of appeal by way of revision. It is an established practice that this Court can treat a memorandum of appeal as an application for revision when no appeal lies. Taking this view, I would set aside the decree of the lower court as a decree passed without jurisdiction and direct the court to set aside the award and proceed to try the suit in accordance with law. I would make the costs abide the result.
Mukerji, J.:— I agree that the suit must be remanded for disposal on the merits. In view of the fact that I agree with my learned brother that we have jurisdiction to take up the matter in revision. I prefer not to decide whether an appeal would lie. See Gopal Das v. Baij Nath. My opinion on the question of appeal will be found reported in Tursi Ram v. Basdeo and Sahdeo Singh v. Melhu Singh. Those cases, however, do not cover the circumstances of the present case. It is a matter for serious consideration whether an award to be binding and to be one from which no appeal would lie, should not be based on a genuine reference. I do not quite see how a party, who never agreed to refer his dispute to arbitration, can be estopped from appealing on the ground that he was no party to the reference. As already stated, I do not propose to offer any decided opinion on that point in the present case.
There can be no doubt that Sheo Ram Singh was an interested party in the subject-matter of the suit for partition. He was admittedly a member of a joint Hindu family and had a share. In the circumstances his mere absence cannot make him a party not interested in the subject-matter of reference. The reference, therefore, without his concurrence was invalid and the award cannot be sustained. The matter must be taken up in revision, if not in appeal.
By the Court.—We dismiss the appeal but, taking up the matter in revision, set aside the decree, of the court below and remand the suit to it with the direction that the award should be put aside and the suit should be proceeded with in accordance with law. Costs here and hitherto will abide the result.