ORDER
1. This is an application, in revision by the plaintiff against the appellate order of the learned Civil Judge of Azamgarh, setting aside an award.
2. The facts giving rise to this revision briefly stated were these. The suit had been filed by Kalka Singh and his son Jhuri Singh against Ram Charit-tar Singh and his three sons, Inderdeo Singh, Raj-deo Singh and Shama Singh. During the pendency of the suit reference was made to arbitration and in that arbitration reference Kalka Singh signed for himself and his son Jhuri Singh while defendants 1, 8 and 4 signed in their capacity as defendants. Defendant No. 2, Inderdeo Singh, Was no party to this reference.
In this reference a note was made to the effect that Inderdeo Singh be exempted from the reference. The trial Court, before whom the application was made, sent the case to the arbitration of the person named in the reference. No order of any kind was passed by the Court below in regard to the request to exempt Inderdeo Singh from the reference. An award was made by the Arbitrator and objections were filed to that award by Ram Charittar Singh. Inderdeo Singh, the exempted defendant, preferred no objections to the award. The trial Court dismissed the objections and directed that the suit be decreed in terms of the award.
3. An appeal was filed by Ram Charittar Singh against the order of the trial Court. Ram Charittar Singh challenged the validity of the award on the grounds that the award was made by the Arbitrator collusively, that the Arbitrator had misconducted himself, and that the award was legally unenforceable. Ram Charittar Singh died during the pendency of the appeal and Inderdeo Singh was substituted as one of the legal representatives of Ram Charittar Singh and he after substitution further raised a question before the appellate Court that the reference was bad inasmuch as he was not a party to the reference. The Court below has given effect to this objection and has held that the reference to arbitration was bad because Inderdeo Singh had not joined as a party to the reference though he was a party to the suit.
4. Mr. Shambhu Prasad, appearing on behalf of the applicant Kalka Singh has raised three points before me. The first contention of Mr. Shambhu Prasad is that it was not open to Inderdeo Singh to raise the question of the validity of the reference at the appellate stage when that question had not been raised by Ram Charittar Singh, his father, in the Court of first instance. Mr. Shambhu Prasad further contended in this connection that in an application for setting aside of an award the question of the validity of the reference could not be raised. He relied on two decisions of this Court for this contention of his.
The first decision is in the case of Lachmi Narain v. Dirg Bijal Singh, 19 All LJ 32: (AIR 1921 All 397) (A). In this case Piggott and Ryves, JJ., held that under Clause 18 of the second schedule of the Code of Civil Procedure, such a question could not be raised. A similar view was taken by Bajpai, J., in the case of Ganga Singh v. Kr. Jitwar Singh, AIR 1935 All 1014 (B). In my opinion the two cases relied upon by Mr. Shambhu Prasad would not be authority for the contention which he has raised for the reason that Sch. II of the old Code of Civil Procedure is no more law as it has been repealed and has now been substituted by the Arbitration Act (Act 10 of 1940).
The provisions which are now contained in the Arbitration Act are not exactly the same as the provisions of the II Schedule of the Code of Civil Procedure were. Section 33 of the Arbitration Act had no equivalent in the II Schedule of the Code of Civil Procedure under Section 33 it is competent for a party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined by an application to the Court and the Court was bound to decide the question. The objections which were filed by Ram Charittar Singh did generally say that the award was illegal.
That, in my opinion, was wide enough plea to include the question that is now being pointedly raised by his son Inderdeo Singh. An Arbitration agreement if it was invalid in law could not culminate in a valid award. I have no hesitation in holding that the objection that was being raised by Ram Charittar Singh and thereafter by his son Inderdeo Singh was legitimately open to them under the provisions of Section 33 of the Arbitration Act,
5. The second contention of Mr. Shambhu Prasad was that the reference in this particular matter was a reference by Ram Charittar Singh as the head of the joint family of which his three sons, Inderdeo Singh, Rajdeo Singh and Shama Singh were members and therefore, the fact that Inderdeo Singh did not join in the reference made no difference to the legality of the reference. In my opinion this contention of Mr, Shambhu Prasad too has no substance because, first, Ram Charittar Singh never alleged that he was entering into the reference in a representative capacity; secondly, the fact that Inderdeo Singh was exempted from the reference was clear indication of the fact that the reference was not in representative capacity but was in respect of. each individual's rights.
Lastly, it was contended by Mr. Shambhu Prasad that all that Inderdeo Singh could argue as a legal representative was what could have been argued by Ram Charittar Singh and not more. It was contended by Mr. Shambhu Prasad that since Ram Charittar Singh could not argue that the reference was invalid because Inderdeo Singh had not joined the reference that contention could not be made by Inderdeo Singh as a legal representative of Ram Charittar Singh by virtue of the provisions of Order 22, Rule 4 (2).
I am of the view that this contention too is not sound. As I have already pointed out, the objections which were preferred by Ram Charittar Singh were wide enough to include the contention that was raised by Inderdeo Singh during the course of the argument before the lower appellate Court, and secondly because the prohibition under Order 22, Rule 4 (2) is not a prohibition against raising questions of legality which go to the very root of this matter and are in the nature of questions of jurisdiction but the prohibition operated in regard to the substantive rights of the parties.
6. The lower appellate Court has found that the reference in this particular case embraced the entire subject-matter of the suit. Inderdeo Singh was as much interested in the suit as any other person, so that, the award would affect Inderdeo Singh's rights as much as any other person's who was a party to the suit. It is important in this connection to note that the trial Court decreed the suit in terms of the award and directed the award to be made part of the decree of the Court.
This clearly indicates that the interest of Inderdeo Singh had been jeopardised by the award without his having had an opportunity to defend his rights. The award does not make any exception in regard to the rights or interests in the property of Inderdeo nor does the decree, which the trial Court made on the basis of that award. This, to my mind, was yet another circumstance which entitled Inderdeo Singh to have the award set aside, and in my view the lower appellate Court has rightly set it aside.
7. For the reasons given above, I see no reason to interfere in this revision which I accordingly dismiss but in the circumstances of the case, I direct the parties to bear their own costs of this revision.