JUDGMENT Sulaiman, Ag. C.J.
1. A suit for a declaration of their rights to fish was filed by the plaintiffs and among the reliefs claimed in the plaint was one for the costs of the suit. On 3rd August 1927 the parties agreed to refer the whole case to the arbitration of five arbitrators. It was not a reference of specific points but of the whole case. There can be no doubt that the dispute in the case included one relating to costs of the litigation and that dispute also was referred to arbitration. The arbitrators delivered an award in favour of the plaintiffs decreeing their claim, but in the award they made no mention of any costs.
2. Objections were filed to the award by the defendants, but the plaintiffs did not object to the award on the ground that it was defective inasmuch as it omitted to give them costs. The learned Munsif overruled the objection and directed that a decree should be prepared in terms of the award. He however ordered that the plaintiffs should get 2/3rds of their entire costs from the defendants who should receive one-third of their costs from the plaintiffs. On appeal to the lower appellate Court by the defendants it was held that the learned Munsif had no jurisdiction to award costs when the arbitrators had failed to do so. The learned Judge disallowed all costs to the plaintiffs. On appeal to this Court a learned Judge came to the conclusion that the plaintiffs were entitled to costs because the Munsif had power to grant them costs. The learned Judge pointed out that when the Court had been given an express power to grant costs of arbitration under para. 13, Schedule 2, it would be manifestly inequitable that the Court should have no power to give costs actually incurred in its own Court. He also relied on Section 35, Civil P.C, which gives the discretion to the Court in the matter of costs. The observations made on general grounds have great force, but we are bound by the language of the Code.
3. There arc three stages in the suit. Costs were incurred by the plaintiffs upto the time of the reference to arbitration. We have already pointed out that having regard to the language of the agreement of reference, it included the dispute as to costs which had been expressly claimed in the plaint. The next stage was the proceeding before the arbitrators and the costs were incurred in that proceeding. [There can be no doubt that under para. 13 Section 2, the Court has full power to grant costs of arbitration when the award contains no sufficient provision concerning 'them. The third stage was when the objections to the award were filed and they were disallowed. The Court had undoubtedly power to grant costs of this 'proceeding to the plaintiffs.
4. As regards the costs incurred prior to reference which also were referred to the arbitration, the difficulty caused by the provisions of para. 3(2), Schedule 2, which lays down that where a matter is referred to arbitration, the Court shall not, save in the manner and to the extent provided in this schedule, deal with such matter in the same suit. If therefore the question of the costs of the litigation was referred to arbitration the latter was precluded from dealing with that matter in the same suit. If the Court considered that the award was defective inasmuch as it omitted to award costs it might have remitted the award to the arbitrators for further consideration; but neither of the parties asked the Court to do that. When the award was not remitted the Court had no power to deal with the question of costs of litigation which had been referred to the arbitrators and which was' left undecided by them.
5. Section 35, Civil P.C, in no way helps the plaintiffs, for the discretion to award costs is subject to such condition and limitation as may be prescribed and to the provisions of any law for the time being in force. As the Court was precluded from going into that matter by virtue of the provisions contained in para. 3, Section 2, it no longer had any discretion to award costs. It may also be pointed out that as soon as the dispute as regards costs of litigation was referred to arbitration, the Court became functus officio, so far as this matter was concerned and could not decide this question.
6. The learned advocate for the respondents has in support of the view taken by the learned Judge of this Court relied on the case of Ram Charan v. Jasoda A.I.R. 1930 Oudh 89. The learned Judges of the Oudh Court referred to para. 13, Section 2, which would suggest that they were dealing only with the costs of the arbitration proceedings. If they meant to hold that the Court had power to grant costs of the entire litigation even if the same had been referred to arbitrators we would not agree with that view.
7. We accordingly allow this appeal in part and modifying the decree of the learned Judge of this Court direct that the plaintiffs should be given costs of the arbitration proceeding if any and the taxable costs of the objections filed subsequent to the award in the Court of first instance; but that the plaintiffs should not be allowed any costs of the suit incurred up to the date of the reference to-arbitration. Let the decree be modified accordingly. The parties shall receive and pay costs in proportion to their success and failure so far as the amount of costs claimed by the plaintiff and denied by the defendants is concerned.