JUDGMENT Aikman, J.
1. This is an application for the revision of a decree of the Court of Small Causes at Agra. The applicant filed a suit against the opposite party. On the 21st of December 1906 the Judge of the Court of Small Causes recorded a proceeding stating that the parties, being identified by their respective vakils, stated that they agreed to accept any decision on the case which should be given by one Babu Tika Ram, vakil, and that they agreed to pay him any reasonable fee for arbitration, the fee to be paid by them in equal shares. Thereupon the Court made a reference of the matters in dispute to the arbitration of Babu Tika Ram and fixed his fee at Rs. 45, ordering the parties each to pay in one half this sum. He fixed the time within which the arbitrator was to return his award. The following day the plaintiff stated that he had paid his half share of the fee , fixed for the arbitrator and asked that the defendant might be ordered to pay his half share. Upon this the Court ordered the defendant to pay his half share to the arbitrator of deposit it in Court by the 4th of January 1907. The defendant not having paid his share of the fee, the plaintiff, on the 4th of January 1907, paid it in on his behalf and asked that the payment should be included in the costs of the case. On the same date the learned Judge recorded an order to the effect that "probably the defendant did not understand that he would have to pay in money to the arbitrator." It is difficult to say how the learned Judge arrived at this conclusion in the face of what had taken place on the 21st of December. The learned Judge thereupon ordered the parties to nominate another arbitrator who would not charge any fee. This not having been done, the learned Judge superseded the arbitration and himself passed a decree in the case. The plaintiff comes here in revision contending that the case having been referred to the arbitration of Tika Ram, with the consent of the defendant, and the said arbitrator not having refused to act, the defendant should not be allowed to withdraw from the reference without valid cause, and it is also contended that under the circumstances stated the Court below had no jurisdiction to supersede the arbitration and proceed with the trial of the suit.
2. The learned vakil who appears for the opposite party contends that the reference was invalid on the ground that there was no application in writing, as required by the last paragraph of Section 506 of the Code of Civil Procedure, and in support of his contention relies on the case of Nusaerwanjee Pestonjee v. Meer Mynoodeen Khan (1855)6 Moo. I.A. 184. That case was under a special Regulation of the Bombay Presidency, and the application for arbitration was a private one and not one made in the course of any suit. It has been distinguished in the case Shama Sundram Iyer v. Abdul Latif (1899) I.L.R. 27 Calc. 61, where it was held that the second paragraph of Section 506 is directory only and that in a case where both parties consented to a reference to arbitration and where the order of reference was made by the Court in the presence of their counsel or advocates, though not upon a written application, such a reference is not a nullity, but merely an irregularity not affecting the merits of the case or the jurisdiction of the Court. The Privy Council case was also distinguished in the case Luxumibai v. Hajee Widina Cassum (1899) I.L.R. 23 Bom. 629. In my opinion when the parties applied orally to the Judge, and the Judge reduced their application to writing and then made a reference, it was not open to him, having regard to the provisions of Section 10 of the Code, to supersede that reference, the arbitrator not having declined to act.
3. I accordingly allow the application, set abide the decree of the learned Judge of the Court of Small Causes, and direct that the case be dealt with in the manner provided by his order of the 21st of December last, an extended date being fixed within which the arbitrator shall give his award. If the defendant does not, within a reasonable time, pay in his share of the arbitrator's fee, it shall be received from the plaintiff and be included in the costs.
4. The applicant will have the costs of this application in any event.