Matters in execution proceedings cannot be referred to arbitration, and an award obtained in execution proceedings cannot be regarded as an adjustment of the decree or a compromise unless all the parties interested consent to the award at the time when it comes up for consideration.

SRINIVASACHARI, J. : -

These revisions have been preferred against the order of the Subordinate Judge, Tenali, passed in Civil Miscellaneous Appeals filed before him against the order of the District Munsif, Tenali, in O. P. Nos. 10 of 1952, 11 of 1952 and 12 of 1952 filed before him under Ss. 30 and 33 of the Indian Arbitration Act.

2. One Gangineni Anjaiah obtained a transfer of a decree for possession passed in O. S. No. 156 of 1938, and sought to execute the decree. The transfer was recognised. Later the matter relating to the execution of the decree was preferred to arbitration. The arbitrators gave an award. Objections were raised to the award and an application was filed to set aside the award. This was the subject-matter of O. P. No. 11 of 1952.

3. The same Gangineni Anjaiah obtained a decree for possession and for mesne profits and proceeded to execute the decree, when the parties referred the matters in dispute to arbitration. An award was given which is sought to be set aside. O. P. No. 10 of 1952 relates to this matter.

4. The third O. P. No. 12 of 1952 was filed to set aside an award passed which was also passed on a reference made to arbitration of matters in dispute in execution proceedings initiated by the transferee of the decree and going on, relating to a decree for possession and mesne profits.

5. In all the above matters, the arbitrators passed awards declaring that the decrees which were being executed had been satisfied. These awards were attacked inter-alia on the ground that matters in execution proceedings could not be referred to arbitration and the arbitrators having had no jurisdiction to hear these disputes, their awards were liable to be set aside. The District Munsif upheld this contention and on this sole ground set aside the awards.

The aggrieved parties filed miscellaneous appeals and the appellate Court differed from the trial Court and held that the reference was valid, and allowed by law. He further held that if for any reason the reference to arbitration of matters in execution proceedings was not allowed by law, such reference was validated by the award being treated as a compromise or adjustment of the dispute between the parties. The appeals were allowed and the order of the lower Court set aside. Revisions have been filed against the above judgment.

6. Learned counsel appearing for the petitioners argues that the provisions of S. 21 of the Arbitration Act were clear that only matters relating to suit could be referred to arbitration and execution proceedings could never be regarded as partaking of the nature of a suit. As regards the second ground relied upon by the lower Court, learned counsel contends that an award passed on an invalid reference could not be relied upon as an adjustment or compromise where there is no consent of one of the parties to such an award.

7. Section 21 of the Arbitration Act, which governs this case makes provision for making references to arbitration in pending suits. It reads as follows :

"Where in any suit all the parties interested agree that any matter in difference between them in the suit shall be referred to arbitration, they may at any time before judgment is pronounced apply in writing to the Court for an order of reference."

This section in substance reproduces paragraph (1) of Sch. II of the Civil Procedure Code. The significance and the import of the words in the suit has been the subject of judicial discussion. Generally by suit is meant a civil proceeding initiated by the presentation of plaint. The word suit has been held to include an appeal as it is only a continuation of suit. The question has arisen with reference to S. 141, C. P. C., as to what proceedings could be regarded as miscellaneous proceedings within the meaning of that Section. Section 141 reads as follows :

"The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction."

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