SHARMA, J. - (1.) THIS application for revision has been filed by Jagdish Chand plaintiff against the order of the learned Civil Judge, Bharatpur, remanding the plaintiff's suit for decision on merits. The suit was for the recovery of Rs. 2100/- and was directed against Durgaprasad and Badriprasad. It was filed in the court of Civil Judge, Bharatpur, on the 9th July, 1947 and was registered on the 7th of November, 1947. On 2nd December, 1948 an Iqrarnama for the decision of the suit by arbitration was made between the parties and Pannalal was made the sole arbitrator. The arbitrator on that very day gave an award exempting Badriprasad and giving a decree against Durgaprasad for a sum of Rs. 1350/ -. Durgaprasad did not accept this award and refused to be bound by it. Jagdish Chand, however, filed this award on the 10th of February, 1949 along with the agreement for arbitration in the court of Munsif, Bayana, to which court the case had by that time come by transfer, and prayed that the suit be decided in accordance with the award. Notice was issued to Durgaprasad who denied the execution of the agreement and said that the award was invalid. Learned Munsif, however, decided on the 14th of September, 1949 that the agreement was duly executed by the parties and that the award operated as a compromise and decreed the suit in terms of the award. Against the order and decree of the Munsif, the defendant Durgaprasad went in appeal and challenged the order of the Munsif on the ground that the agreement for arbitration was not duly executed by him and that the award in any event cannot operate as a compromise by virtue of the proviso to sec. 47 of the Arbitration Act of 1940. Learned Civil Judge, who heard the appeal, agreed with the Munsif that the agreement for arbitration was duly executed by the parties but held that the award was unenforceable by virtue of the proviso to sec. 47 of the Arbitration Act. He consequently set aside the order and decree of the Munsif and remanded the case for decision on merits. Against this order of the learned Civil Judge, Bharatpur the plaintiff has came in revision to this Court.
(2.) I have heard Mr. Ram Avtar Gupta on behalf of the applicant, who argued that the award could be taken as an adjustment of the suit between the parties and that sec. 47 did not bar its being acted upon. He relied upon a Division Bench case of Madras High Court in V. S. A. Arumuga Mudaliar vs. V. S. P. Balasubramania Mudaliar and others (1) (AIR 1945 Mad. 294.) and a Full Bench case of Allahabad High Court in Dular Koeri and others vs. Payag Koeri (2) (AIR 1942 All. 145. ). On behalf of the opposite party Mr. D. M. Bhandari argued that the Allahabad ruling relied on by the learned counsel for the applicant has no application to the facts of the present case, because the agreement for arbitration and award were not governed by the provisions of Arbitration Act, 1940, but the Schedule II of Civil Procedure Code, wherein there was no provision like the proviso to sec. 47 of the Arbitration Act. As regards the Madras ruling it was argued that it had been over-ruled by a very recent decision of the Full Bench of the same Court in the case of Abdul Rahman Sahib vs. Muhammad Siddiq and another (l ). It was also argued that a revision did not lie in this case because the order of the learned Civil Judge could be challenged in an appeal which might be filed against the decree in the suit. So far as the preliminary objection raised by the learned counsel for the opposite party is concerned, I do not think it necessary to express an opinion thereon because to my mind this application for revision fails on merits. Coming to the merits, I find from the language of sec. 47 of the Arbitration Act that an award which is not obtained in accordance with the provisions of the Arbitration Act can be taken into consideration as a compromise or adjustment of a suit only when all the parties interested give their consent to its being so used. For the sake of clarity I may quote sec. 47 with its proviso in full. It runes as follows: - "subject to the provisions of sec. 46, and save in so far as is otherwise provided by any law, for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder : Provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending. " From the wordings of the section it is clear to my mind that the consent required by the proviso is not the consent prior to the making of the award but it is the consent after the award has been made. The learned Judges of the Madras High Court who decided the case of Arumuga vs. Bala Subramania (2), if I am say so with respect, do not appear to have critically examined the language of the proviso to sec. 47 of the Arbitration Act in view of the fact that there was a previous Full Bench decision of their own High Court in the case of Subbaraju vs. Venkataramaraju (3 ). That decision was given in respect of an award made under Schedule II of the Civil Procedure Code and not under the provisions of the Arbitration Act of 1940. Before the passing of the Arbitration Act of 1940 there was no provision in the Civil Procedure Code like the proviso to sec. 47 of the Arbitration Act. There was, therefore, a good deal of controversy between the various High Courts in India as to whether an award without the intervention of the court during the pendency of the suit could be acted upon as a compromise or adjustment of the suit without being accepted by the parties after it was made. On the language of the proviso to sec. 47 of the Arbitration Act, however, there does not remain any room for this controversy. The case of Arumuga vs. Bala Subramania (2) (AIR 1928 Mad. 1025.) came under the notice of the Full Bench in the case of Abdul Rahman Sahib vs. Md. Siddiq (1) (AIR 1953 Mad. 78l.) referred to above and I may with profit quote the following wards of Venkatarama Ayyar J. who delivered the judgment: - "the decision in Subbaraju vs. Venkataramaraju (3) (AIR 1928 Mad. 1025.), it may be noted, was to a large extent based on the view that the provisions relating to the arbitration contained in the Second Schedule to the Civil Procedure Code were not exhaustive. Phillips J. observed: - The Second Schedule, Civil Procedure Code is not mandatory, but provides for reference to arbitrators at the will of the parties and also provides that certain procedure must be followed if they take action under that schedule. It does not however, say that there shall be no arbitration other than what is dealt by with the second schedule, and if parties to the suit choose to refer to arbitration it is open to them to adopt the provisions of the second schedule or not as they please. This reasoning would be inapplicable to the Arbitration Act, 1940, because its scope is statedly to consolidate and amend the law relating to Arbitration in British India Sec. 89 of the Civil Procedure Code provides that 'save in so far as is otherwise provided by the Arbitration Act, 1939, or by any other law for the time being in force, all references to arbitration whether by an order in a suit or otherwise, and all proceedings thereunder, shall be governed by the provisions contained in the second schedule' and in Sabbaraju vs. Venlcataramaraju (1) (AIR 1928 Mad. 1025.), it was held that Order, 23 Rule 3 was 'other law for the time being in force', which was saved by sec. 89 Civil P. C. In the Arbitration Act of 1940 sec. 47 which corresponds to sec. 89 of the Code enacts that 'save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations, and to all proceedings thereunder'. That the 'other law for the time being in force' in this section cannot take in O. 23. R. 3 is clear from the proviso which makes provision for 'an arbitration award otherwise obtained' being treated as a compromise - a provision which would have been wholly unnecessary, if 'any law for the time being in force' comprehended O. 23, R. 3 and which in its scope and tenor is different from, if not inconsistent with, the terms of O. 23, R. 3. " It was further observed that : - "it is also significant that the proviso requires the consent of the parties interested. If the consent contemplated by the proviso is merely to the agreement to refer to arbitration, then the words "consent of parties" simply would have been sufficient and appropriate. If the consent is for the award itself, then the use of the words "parties interested" becomes apt and intelligible. " As regards the Allahabad case of Dular Koeri vs. Payag Koeri (2) (AIR 1942 All. 195.) it was observed as below : - "the award in question in that case had been made before the enactment of the Arbitration Act, and the learned Judges merely observed : - We need not go into the merits of the dispute because it is sufficient for us to say that for all future practical purposes the difficulty has now been removed by sec. 47 of the new Arbitration Act of 1940, which not only repeals sec. 89 of the Code, but replaces it by a new section which makes the matter quite clear. ' Then they refer to the decision of the Full Bench in Gajendarsingh vs. Durgakunwar (3) (AIR 1925 All. 503.) and followed it on the principle of 'stare decisis' again observing that 'the matter is not one of practical importance for the future. ' We not read these observations as meaning that under sec. 47 an award in a private reference is a pending suit and could be regarded as compromise or adjustment. " Finally the following observations were made : - "we are accordingly of opinion that under the proviso to sec. 47, an arbitration award obtained otherwise than in proceedings taken in accordance with the Act cannot be recognised as a compromise or adjustment of the suits; that no decree can be passed thereon under the provision of O. 23, R. 3; and that the decision in Arumuga Mudaliar vs. Balasubramania Mudaliar (4) (AIR 1945 Mad. 294.) should be overruled. But it, after an award is made, the parties thereto agree to accept it, that will be a compromise and a decree based thereon could be passed under Q. 23 R. 3" In view of the strong support which I get from the ruling of the recent Full Bench decision of the Madras High Court in the case mentioned above for the view which I have taken about the interpretation of the words "with the consent of parties" in the proviso to sec. 47 of the Arbitration Act, I need not refer to other authorities which are in favour of the same view. Mr. Ram Avtar Gupta himself, after going through the said rulings admitted that in view of that ruling his contention could not have any force. The application for revision is dismissed. Costs of this revision shall abide the result of the suit in the trial court after remand. . ;