ORDER : 1. A suit for rendition of accounts as between principal and agent was instituted by Bhagirath Porwad against Shankarlal and Usafali in the Nizamat Ct. Jhabua. During the trial of the suit, the dispute was referred to Arbitration by the Ct. at the instance of the parties. Before the arbitrators, however, the parties also laid another dispute independent of the matter in suit. The arbitrators made two separate awards in both the disputes. The learned Nizim repelled the plea of the deft, that both the awards should be considered together, and passed a decree on the award in so far as it determined the matter in suit and left the other to be considered in proceedings which had been instituted there, for. An appeal was taken by the deft, to the Dist. J. and at the hearing parties again prayed for the matter being referred to a Panchayat. Accordingly Mr. Beniram was appointed arbitrator and the matter in appeal as also the dispute outside it were referred to him. The arbitrator made his award on both the disputes and the lower appellate Ct. after hearing objections passed a decree thereon. The pltf. has come up in revn, 2. Two objections have been urged against the decree; (1) That in appeal, the first award could not have been set aside and another substituted; (2) that the appellate Ct. could not refer the dispute to arbitration. 3. It is clear that the learned lower appellate Ct. was seized only of the matter in appeal before it and in any case the dispute which had been referred to arbitrators without the intervention of the trial Ct. was outside the scope of the proceedings throughout and the more so be cause the trial Ct. had excluded it. It is settled law that the Ct. has no power to refer to arbitration any questions other than those in question in suit. As such the reference by the Ct in appeal was ultra vires and the proceedings being invalid must be set aside. It is unnecessary in view of this to consider the other question raised on behalf of the applt. on the authority of the decisions reported in Abani Bhusan v. Hemchandra, A. i. R. (34) 1947 Cal. 93: (227 i. C. 168) and Shukrullah v. Mt. Rahmat Bibi, a. i. R. (34) 1947 all. 304: (I. l. R. (1947) all 227) viz. on the authority of the decisions reported in Abani Bhusan v. Hemchandra, A. i. R. (34) 1947 Cal. 93: (227 i. C. 168) and Shukrullah v. Mt. Rahmat Bibi, a. i. R. (34) 1947 all. 304: (I. l. R. (1947) all 227) viz. that a reference can be made in a suit but not in appeal. Speaking for myself, I think the question is debatable. 4. The plea in appeal was not about the validity of the first award and the only question raised was about the propriety of the decree on one award to the exclusion of the other. There was no plea for the award being set aside and therefore, no occasion to refer the case again to arbitration in appeal. The learned Judge was, therefore, in error in miking the reference. I agree with respect with the view taken in Lakhsminarasu v. Nagamma, a. i. R. (22) 1935 Mad. 1053: (158 I. C. 1071) that such a procedure is not warranted and Bet aside the decree of the lower appellate Ct. and remand the case to the lower appellate Ct. for disposal in the light of the above observations. The learned Dist. J. will hear the appeal as at the stage of the invalid reference and the consequent invalidity of the proceedings in arbitration, Both the parties were responsible for the invalid reference and shall, therefore, bear their own costs in this appeal and those incurred up to date in the lower appellate Ct. from the stage of the reference. Other costs will abide by the final decision.