Judgement Appeal from a decree of the Court of the Judicial Commissioner (November 27, 1906) affirming an order of the District Judge of Lucknow (September 5, 1906). The appellant is the son and the respondent is the daughter and a deceased respondent was the widow of Mirza Agha Hasan Khan, who died in 1901. The three parties were the heirs of the deceased under the Mahomedan law of the Shiah sect. On April 25, 1908, the respondents sought in an administration suit to recover their shares of inheritance from the appellant, who had taken possession of the whole estate. According to the Mahomedan law of the Shiah sect, the widow was entitled to three parts, the daughter to seven parts, and the son to fourteen parts, the whole being divided into twenty-four parts. On August 2, 1905, a decree was made in terms of a compromise which had been entered into on the day previous thereto. It is as follows " Paragraph 1. That in the property entered in the list No. 1 hereto attached, the plaintiffs shall be decreed a 6 anna 8 pie share out of 16 annas, that is, a 2 anna share shall belong to the plaintiff No. 1, a 4 anna 8 pie share to the plaintiff No. 2, and the remaining 9 anna 4 pie share to the defendant. " Paragraph 2. That in the property entered in list No. 2 hereto annexed, the plaintiffs shall be decreed 5 annas out of 16 annas, that is, 1 anna 6 pie share shall belong to plaintiff No. 1, and 3 anna 9 pie share to the plaintiff No. 2, and the remaining 11 anna share to the defendant. " Paragraph 3. That in the property entered in list No. 3 hereto attached, the entire 16 annas shall be owned by the defendant, and the plaintiffs shall receive no share therein." Then follows paragraph 10, the construction of which gave rise to this appeal " Paragraph 10. " Paragraph 3. That in the property entered in list No. 3 hereto attached, the entire 16 annas shall be owned by the defendant, and the plaintiffs shall receive no share therein." Then follows paragraph 10, the construction of which gave rise to this appeal " Paragraph 10. The division of the zemindari property between the parties will be effected in this way, that instead of allotting detached portions of zemindari property (in a share), some ek-ja (lit., in one place) zemindari property situate in one district of as nearly as possible the same value will be allotted to the share of the plaintiffs, in accordance with the proposal of the defendant which will be declared by the 1st September, 1905, but subject to this condition, that the plaintiffs would under all circumstances get 6 annas 8 pies share in Village Dadra, Pargana Partabgarh, District Barabanki. " Moulvi Mohamed Nasim and Sheikh Ali Abbas, two pleaders of the Court, would ascertain the fact that the property proposed by the defendant is, with regard to the plaintiffs share, yielding as far as possible equal profits and is ek-ja (situate in one place), that is to say, the share allotted to the plaintiffs in each of the villages, as proposed by the defendant, includes the whole of the share possessed by the defendant therein, provided the profits arising out of that share do not exceed those of the plaintiffs share. " If after examination both the gentlemen should decide that there is some defect in the defendants proposal as regards the equality of profits and situation of the property, they would be authorized to make such proposal as they may think proper to remove that defect, and that proposal would be final for the parties. " If Moulvi Mohamed Nasim and Sheikh Ali Abbas differ in their opinions, the decision of Syed Nabi-ul-lab, barrister-at-law, on the points in which they differed would be binding on the parties. " The defendant would, before 1st October, 1905, deliver to the plaintiffs possession over the zemindari which may fall to the share of the plaintiffs, and the plaintiffs would be entitled to the profits of Kharif 1313 Fasli. If the defendant fail to deliver over possession, the plaintiffs would be entitled to obtain possession by getting the decree through Court. " The defendant would, before 1st October, 1905, deliver to the plaintiffs possession over the zemindari which may fall to the share of the plaintiffs, and the plaintiffs would be entitled to the profits of Kharif 1313 Fasli. If the defendant fail to deliver over possession, the plaintiffs would be entitled to obtain possession by getting the decree through Court. " If by 1st September, 1905, the defendant does not submit his proposal in respect of the partition of zemindari to Moulvi Mohamed Nasim, plaintiffs pleader, the plaintiffs would be at liberty to apply to the Court to have a commissioner appointed for partition, and according to the partition made by the commissioner the plaintiffs would be entitled to recover possession through Court." In accordance with paragraph 10 the appellant submitted his proposal as to the property to be allotted to the respondents, and the District Judge made an order of reference to arbitration and appointed Moulvi Mohamed Nasim and Sheikh Ali Abbas arbitrators according to the terms of the said compromise. On August 21, 1906, Moulvi Mohamed Nasim refused to act as arbitrator, whereupon the respondents applied to the District Court, praying it to withdraw its order of reference and to deal with the matter itself. The respondents declined to appoint another arbitrator, and thereupon the Court, after a scrutiny of the appellants proposals, passed an order allotting to the respondents jointly seven villages, not the villages proposed by the appellant. This order was affirmed by the Judicial Commissioner. The Court held that the shares of the two respondents were under paragraph 10 of the compromise to be treated as one, that the whole of the combined shares was to be in one district, and that part of two of the villages which were included in list 8, which under the compromise were to be the appellants, were rightly allotted. Do Gruyther, K.C., and Kuffin, for the appellant, contended that the procedure adopted by the Courts below was erroneous. The Court had no jurisdiction to settle the dispute under paragraph 10 of the compromise. The only course open to it when the administration suit was concluded by decree was to carry its terms into effect. Those terms provided for a distribution of the estate by arbitrators appointed for that purpose. The Court had no jurisdiction to settle the dispute under paragraph 10 of the compromise. The only course open to it when the administration suit was concluded by decree was to carry its terms into effect. Those terms provided for a distribution of the estate by arbitrators appointed for that purpose. The Court ought in the events which happened to have appointed a new arbitrator in the place of the moulvi who declined to act. It had the power so to do, but it had no power to treat the arbitration as at an end and to resume the consideration and decision of a case which had been finally determined by decree. Reference was made to ss. 506, 508, and 510 of the Civil Procedure Code and to Pugardin Ravutan v. Moidinsa Ravutan. (I. L. R. 6 Madr. 414.) Its jurisdiction over the merits of the case was at an end, and all that it could do was to appoint another arbitrator, so as to carry out the compromise. Sir Eric Richards, K.C., and Dube, for the respondent, contended that the Court had power under s. 244 (c), C. C. P., when the arbitration provided by the parties had broken down, to take the case up again and give effect to the agreement of the parties. Reference was made to ss. 213, 244, 375, 392, 510, 514, and 523 of the Civil Procedure Code of 1882, and to s. 5, Sched. II., of the Civil Procedure Code of 1908. The Court had a discretion in the matter and, whether wisely exercised or not, it ought not to be overruled. But it had no power to appoint another arbitrator without consent of parties see Ghalam Khan v. Mahomed Hasain. (( 1901) L. R 2 Ind. Ap. 51.) Reference was made to the case cited by the appellants at 6 Madr. 414 and Bepin Behari Chowdhry v. Annoda Prosad Mullick. (I. L. R. 18 Calc. 324.) In this case as well as in the two cases cited the arbitrator had never accepted the office nor consented to act, and consequently there was no refusal to act within the meaning of the Code. See Sada Sookh v. Shiva Dyal. (( 1866) 1 Agra, 109.) Sect. 510 of the Code of 1882 applied to cases where the machinery of arbitration had broken down and authorized the Court to take the case up. See Sada Sookh v. Shiva Dyal. (( 1866) 1 Agra, 109.) Sect. 510 of the Code of 1882 applied to cases where the machinery of arbitration had broken down and authorized the Court to take the case up. See Birajmohini Dasi v. Chintamoni Dasi. (( 1901) 5 Calc. W. N. 877.) De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE. This appeal is presented from an order dated November 27, 1906, made by the Court of the Judicial Commissioner of Oudh, which affirmed an order dated September 5, 1906, made by the District Judge of Lucknow. It appears that one Mirza Agha Hasan Khan died on Decem ber 27, 1901. He was survived by a widow, a daughter, and a son. They were heirs of the deceased under the Mahomedan law of the Shiah sect, and the property fell to be divided amongst them in certain proportions. Mirza Agha Hasan Khans property, however, was situated in various districts, and while the arithmetical division of the shares fell to be determined by law, it was considered by the heirs that it would be to their advantage that, instead of a large variety of fractional portions of property being taken by each heir in subjects situate, it might be, at a considerable distance from each other, an arrangement should be carried out by arbitrators whereby the shares falling to the ladies should be consolidated in one district, and other arrangements for convenience of management entered upon. Accordingly a compromise and agreement in this sense was drawn up. In April, 1903, the respondents had brought a suit claiming administration of the estate, and on August 1, 1905, the compromise was made, and on the following day, namely, August 2, 1905, the decree which raises the crucial question in this case was pronounced by the Subordinate Judge of Lucknow, which bore that " It is ordered that in terms of the compromise herewith annexed, marked A. .... plaintiffs claim be decreed under sections 157 and 375, Civil Procedure Code; and as regards costs, the Court orders that parties do bear their own costs." Sect. plaintiffs claim be decreed under sections 157 and 375, Civil Procedure Code; and as regards costs, the Court orders that parties do bear their own costs." Sect. 157 seems to have no bearing upon the procedure and to have appeared in the judgment by mistake, but s. 375 deals with the matter of compromise of suit and provides that " if a suit be adjusted wholly or in part by any lawful agreement or compromise .... such agreement, compromise, or satis faction shall be recorded and the Court shall pass a decree in accordance therewith, so far as it relates to the suit, and such decree shall be final so far as relates to so much of the subject- matter of the suit as is dealt with by the agreement, compromise, or satisfaction." As has been pointed out, the agreement or compromise in this case went by its nature beyond the actual matter of suit between the parties. But it is also clear that the decree thus, so to speak, ratifying the compromise was a final decree. The Court has discharged itself of the lis between the parties, and by their own agreement thus ratified the settlement of the points upon which they had agreed fell to be made by the tribunal of arbitration to which the parties had consigned it. By the agreement two arbitrators were appointed to settle, allocate, &c, the respective rights of parties. One of these, for reasons which need not be entered upon (he was the advocate for the respondents), refused to act as arbitrator. Thereupon the respondents, on August 23, 1906, presented a petition in the Court of the District Judge, narrating this fact and averring that " owing to his refusal to act, it has become necessary that the honourable Court should itself examine the schedule and bring it in conformity with the terms of the compromise, or, failing that, it should appoint a commissioner and direct," &c. The respondents declined to nominate another arbitrator on their behalf; and, in fact, it seems clear that they held, not only that this declinature was within their rights, but that it was also not in the power of the Court to nominate another arbitrator to supply the gap which had been caused by the declinature. The Court accordingly was asked to take the matter into its own hands. The Court accordingly was asked to take the matter into its own hands. Before seeing how the Civil Procedure Code and the Indian decisions bear upon the point, it may be added that the District Judge acceded to the view presented and to all intents and purposes superseded the arbitration and entered upon the scrutiny of the lists of properties and the determination of the allocation—in short, performed the duties of the tribunal of arbitration as if the agreement or compromise had authorized that procedure. This was confirmed in the Court of the Judicial Commissioner of Oudh by the order appealed from. By s. 510 of the Code of Civil Procedure, 1882 (Act XIV.), it is provided that " if the arbitrator, or, where there are more arbitrators then one, any of the arbitrators . . ………dies, or refuses or neglects or becomes incapable to act .... the Court may in its discretion .... appoint a new arbitrator .... or make an order superseding the arbitration, and in such case shall proceed with the suit." "What had happened in the present case was that after the arbitrator had been appointed he refused to accept office as such, or to act. It appears, however, that the Courts in India have construed this section of the Code as meaning that the section can only apply if the arbitrator who refuses had accepted office before refusing. These decisions are Pugardin Ravutan v. Moidinsa Ravutan (1. L. R. 6 Madr. 414.) and Bepin Behari Chowdhry v. Annoda Prosad Mullick. (I. L. R. 18 Calc. 324.) In both of these cases it was held that the Court has power, under s. 510, to appoint a new arbitrator in the place of another only when that other had first consented to act and thereafter refused or become incapable. In their Lordships opinion this is not a proper construction of s. 510 of the Code. It appears to their Lordships that, when an arbitrator is nominated by parties, his refusal to act is signified as clearly by his refusal to accept nomination as by any other course he could pursue. His refusal to act necessarily follows, for he has not performed the first action of all, namely, to take up the office by signifying his assent to his appointment. His refusal to act necessarily follows, for he has not performed the first action of all, namely, to take up the office by signifying his assent to his appointment. Their Lordships do not enter at length into the matter as it appears that any other construction would open the way to an easy defeat of the pro visions of the statute. Nor do their Lordships doubt that the decisions referred to proved in the present case an embarrassment to the Courts below and have probably prevented the District Judge doing what would have supplied all that was required, namely, to appoint another arbitrator instead of the one who had declined to accept nomination. Had that been done the tribunal of arbitration would have been set up and the proceedings could have gone forward. Furthermore, the appointment was in the hands of the District Judge, and he was in no way precluded from making it by the fact that the party whose arbitrator had declined refused to assist the Court by suggesting another name. In their Lordships1 opinion the procedure of the Courts below in this particular, and the decisions upon which they manifestly proceeded, were erroneous. What was done, however, was (apparently under the same section which was held to make it incompetent to appoint a fresh arbitrator) to adopt the other course of superseding the arbitration and entering upon the determination of the matters submitted by the agreement. It was this latter which was done, and not proceeding with the suit. To " proceed with the suit " (to use the language of s. 510) was in this case, in their Lordships view, impossible. The suit was at an end, and something different from and going much beyond the suit had been entered upon. The decree of August 2, 1905, was not a decree for partition nor for administration. It was simply a decree ordering the agreement and compromise of parties to be carried into effect, and that decree was final. It put an end to the suit, and that was the very object of the compromise. The alternative in s. 510 is impossible, because there is no suit now pending with which the Court can proceed. All that the Courts in India could do was to take advantage of the sections of the Code which enabled them to keep the machinery of arbitration going. The alternative in s. 510 is impossible, because there is no suit now pending with which the Court can proceed. All that the Courts in India could do was to take advantage of the sections of the Code which enabled them to keep the machinery of arbitration going. This could have been done, and, had it not been for the decisions cited, would in all probability have been done, by simply naming a fresh arbitrator. Parties who agree to set up a tribunal of arbitration are not bound to submit the case referred to another tribunal, such as a district or other judge. It may be regretted that the supersession of the arbitration and the interposition of the judge himself to settle the points referred to arbitrators should not have been assented to. But the objection which has been taken— that the rights having been remitted to one tribunal have been settled by another—is, in their Lordships opinion, a fatal objection. Their Lordships will accordingly humbly advise His Majesty that the appeal be allowed and the decrees of the Courts below reversed with costs. The respondent Kaniz Zahra Begam must pay the costs of the appeal.