- (1.) THIS is a defendants' appeal against an order passed by Mr. Des Raj Pahwa. Commercial subordinate Judge, Delhi, dismissing their objections. The appeal is headed as being under Order xliii. Rule 1 (m), Civil Procedure Code, read with Section 39 (1) Sub-clause (vi), Indian arbitration Act.
(2.) A preliminary objection has been taken that no appeal lies against the order passed by the subordinate Judge. Order XLII, Rule 1 (m) provides for an appeal against an order under Rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction and section 39 (1) (vi) of the Arbitration Act provides for an appeal against an order setting aside or refusing to set aside an award. It is not possible to give a decision on this point without considering the nature of the proceedings which have been taken in the Court below and the decision given thereon.
(3.) THE plaintiffs, Santosh Kumar and others, brought a suit for, (1) partition of Khanna Talkies in Delhi, (2) dissolution of partnership and accounts and (3) rendition of accounts received of khanna Talkies. On the 13th December 1949, the differences between the parties were referred to the arbitration of Mr. Ram Kanwar, retired District Judge, but he did not act and on the 20th february 1950 he resigned. On the 21st March 1950, an application was made to the Court which was signed by all the parties. The application was to the following effect: "it is submitted that in the above case the parties have willingly * * * appointed Seth Jagat narain, Proprietor of Jagat Talkies, Delhi, as 'referee'. The parties are fully aware that plaintiff no. 1 is the son-in-law of Seth Jagat Narain. It is there fore prayed that the case be referred to him and whatever decision he, without taking into consideration the issues in dispute, gives would be acceptable to the parties and none of the parties will raise any kind of objection". On the same day, statements of parties were recorded, and firstly of the defendants except defendant No. 3. They stated -- "we have willingly appointed Seth Jagat Narain. proprietor of jagat Talkies as referee * * * ". The plaintiffs made the same statement saying that Seth Jagat Narain, Proprietor of Jagat talkies had been appointed as referee. Defendant No. 3 also made a similar statement.;