Narayan, J.

1. This appeal is directed against an order of the Subordinate Judge, Bhagalpur, setting aside an award. The award had been given by one Mr. Anant Prasad who had been appointed an arbitrator by the parties of Partition Suit No. 5 of 1947, to decide the dispute which is the subject-matter of that suit. After the award had been submitted, the defendant No. 1 filed an objection & contended that the award was not fit to be accepted. This objection found favour with the learned Subordinate Judge who set aside the award & directed that the suit be heard on the, merits.

2. The pltfs & the deft. No. l are the descendants of one Babu Baij Nath Sahai. Baij Nath Sahai left two sons, Bhagwat Sahai & Bhawani Sahai. The pltf. No. 1 is the son of Bhawani Sahai, & the other pltfs. are the sons or grandsons of the pltf. No. l. The deft. No. 1 is the son of Bhagwat Sahai, the other defts. being transferees from deft. No. 1. These other defts. never appeared in the suit, & on a petri. that was filed on 24-9-1947 by the lawyers representing the pltfs & the deft No. 1, the case was referred to arbitration & Mr. Anant Prasad, a common relation of the parties, was appointed the arbitr