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1911 DIGILAW 170 (ALL)

Datta v. Khedu

1911-05-10

CHAMIER, KARAMAT HUSAIN

body1911
JUDGMENT : CHAMIER, J. 1. When this case was before the lower appellate court all parties joined in an application to the court that the matters in difference between them should be referred to arbitration, and an arbitrator was named in the application. The court declined to make a reference to arbitration because in its opinion Schedule II of the Code of the Civil Procedure was no part of the Code, and therefore Section 107 of the Code did not confer upon an appellate court the power to make a reference to arbitration, conferred upon courts of first instance. This view cannot be supported. The second schedule to the Code is as much an enactment as any other part of the Code, and there is no doubt that the lower appellate court in this case had power to make a reference to arbitration as prayed by the parties. Under paragraph 3, Schedule II, the court ought to have referred the matters in dispute to the arbitrator named in the application. It is contended that the error committed by the court is cured by Section 99 of the Code. But inasmuch as the error resulted in the substitution of the Judge's decision for the decision of the arbitrator, it is impossible to hold that the case is governed by Section 99 of the Code. Then it was suggested that it would be useless to remand this case to the lower appellate court, because one of the parties to the original application has died. 2. It seems clear however that the authority of an arbitrator is not necessarily revoked by the death of one of the parties to a proposed arbitration. In the present case the right to sue survived, and therefore after substitution of the representative of the deceased party the case should have been referred to the arbitration as prayed. We are supported in this opinion by the decision of the Madras High Court in Perumalla v. Perumalla, [1903] I.L.R., 27, Mad., 112. We allow this appeal set aside the decree of the lower appellate court, and remand the case to that court for disposal according to law. Costs of this appeal will be costs in the cause.