The contention raised here at a late stage, that 1st defendant, who was a “party interested” was not joined as a party to the reference, and, therefore, the reference was without jurisdiction, must, I am afraid, prevail. The lower Court has overlooked that point, but it was never raised before it. It was also not raised in the original grounds of the Civil Revision Petition, but by way of additional ground. The 1st defendant was exparte in the suit, but he was undoubtedly a party interested at the time of the reference, since the plaintiff's claim was either for specific performance of the contract by 1st defendant, or for damages against him. It is strenuously urged that plaintiff by his inaction in not taking the point earlier must be deemed to have waived his claim against 1st defendant i.e, in effect to have exonerated him from the suit. But there is nothing on record to substantiate this contention and the frame of the award which opens with a finding against 1st defendant's contention that the sale agreement was nominal, shows that the arbitrators had no idea that 1st defendant was exonerated.
The rulings cited before me Patita Pivana Panda v. Narasinga Panda(1), Subba Rao v. Appadura Aiyar(2) and Parasurama Mudaliar v. Muthuswamy Pillai(3) are authorities for the plaintiffs' contention and for the position that the objection can be taken by any party to the award and that the omission to make an ex Parte defendent a party to the award is fatal to the jurisdiction of the arbitrators to make an award. The case Bhagavanulu v. Setharamaswami(4) is not a case of “ex parte” party but of an exonerated party. It will not do any good to either party or the Court to refuse to set aside in revision an award which is wholly void. But in view of the late stage in which the objection is put forward, I do so with reluctance and consider that plaintiff should have no costs. I set aside the award as made without jurisdiction. Each party will pay his own costs here and below. The suit will have to be retried.
K.V.SPetition allowed.