K. N. Misra, J. - (1.) THIS First Appeal From Order No. 32 of 1981 is directed against the judgment and order dated 29-11-80 passed by the Civil Juge, Bahraich, on an application moved by the plainiff-appellant C-224) which was filed on 31st August, 1979 in Regular Suit No. 18 of 1958. Briefly stated the facts of the case are as follows :-
(2.) IN respect of the properties situate at Lucknow, Kheri and Bahraich an agreement was arrived at between the parties to refer the dispute to the named Arbitrator Sri Baij Nath Prasad Agrawal. An application under section 20 was filed by the respondents for reference to the Arbitrator, which was registered as Suit No. 18 of 1958. This application under section 20 of the Arbitration Act was filed in the Court of Civil Judge, Lucknow. It appears that prior to the filing of this suit under section 20 a regular suit for partition (Suit No. 18 of 1958) was filed by the plaintiffs Mangal Prasad and Rajendra Prasad. The learned Civil Judge, Lucknow by his order dated 9-9-1961, made a reference of the dispute to the said named Arbitrator under Section 20 of the Act. Against this order an appeal (F. A. F. O. No. 57 of 1961) was filed in this Court. It appears that in the meantime an application under section 34 was moved by the defendants-respondents in the aforesaid Suit No. 18 of 1958 for staying proceedings in the suit, on the ground that an agreement was entered into between the parties for reference of dispute to the arbitrator and in pursuance of it reference petition under section 20 of the Act has been made and, as such, proceedings in the suit be stayed. This application was rejected by the Civil Juge by his order dated 19-9-1959. Aggrieved by that order the respondents filed appeal (F. A. F. O. No. 35 of 1959) in this Court and further proceedings in the said suit were ordered to be stayed by this Court. The aforesaid appeals along with Appeal No. F. A. F. O. 48 of 1960 were heard and disposed of by this Court by judgment and order dated 14th December, 1977, and the order making reference to the Arbitrator under section 20 was upheld and the proceedings in the aforesaid regular suit for partition were stayed. It appears that on 31-8-1979 an application (C-224) was moved by the defendant-appellants in the present Regular Suit No. 18 of 1958 for revoking the authority of the "Arbitrator and for deciding the case on merits. This application was allowed ex-parte by the learned lower court by order dated 12-11-79 and the authority of the said Arbitrator was revoked and the case was directed to proceed ex-parte against the respondents. Subsequently by order dated 19-2-80 the plaintiffs were directed to propose the name of another Arbitrator within ten days and notices were directed to be sent to defendant Sukhbir Singh through registered cover and rest of the defendants were ordered to be served by publication because it was observed that they are not interested in proceeding with the suit and the steps by ordinary process would be futile.
(3.) IT appears that Sri Raghubir Saran Srivastava, Advocate, whose name the plaintiffs proposed as an Arbitrator in this case, expressed his consent by noting on the margin of the order sheet of 19-5-80, but before the Arbitrator could be appointed an objection (C-23-9) was filed by the defendants on 7-10-80 wherein it was asserted that the authority of the Arbitrator could not be revoked by this Court and the ex-parte order dated 12-11-79 be recalled. The learned Civil Judge, Bahraich by the impugned order dated 29th November, 1980 set aside the aforesaid order and directed the proceedings to remain stayed in view of the decision of this Court dated 14-12-77 passed in the aforesaid appeals and also in F. A. F. O. No. 48 of 1960. Aggrieved by this order the plaintiffs-appellants have preferred this appeal.;