ABDUL HALIM Vs. ABDUL GAFUR

JUDGEMENT

(1.) This is an appeal from the District Judge of Tipperah who confirmed an order of the Subordinate Judge of Comilla. The point that arises in the appeal is whether the learned Judge in the Court below was right in the conclusion to which he came : that there could be a valid reference to arbitration in a suit unless all the parties to the suit joined in asking for the reference. The learned District Judge has held that there could be a valid reference to arbitration without all the parties to the suit agreeing to the reference. In our opinion this decision is clearly wrong as Section 1, Schedule 2, Civil P.C., by virtue of which a reference of matter in dispute in a suit can be made, expressly provides for all the parties to the suit agreeing to the reference.

(2.) The result is that the decision of the District Judge is, as already stated, wrong as also the decision of the Subordinate Judge which it affirms. In our opinion there was no valid reference to arbitration and the appeal must succeed and the suit must proceed. A question was raised with regard to the form in which this appeal was filed. The appeal is directed against the judgment and decree passed by the District Judge. This is quite correct, but it is headed as an appeal from an appellate order and the proper Court-fee in respect of the appeal against the decree has not been paid nor have certified copies of the decrees of both the Courts below been filed. But these are matters which can be cured and the appeal itself was properly preferred against the judgment and decree, and accordingly there is nothing in the preliminary objection that was taken as the learned vakil for the appellant undertakes to put in within one week the deficit Court-fee and file certified copies of the decrees.

(3.) Subject to this undertaking the appeal, therefore, succeeds with costs, hearing-fee, two gold mohurs. Liberty to apply if the undertaking is not carried out.