A reference to arbitration is incompetent and the award is voidable at the instance of the minors where the guardians-ad-litem enter into an agreement for reference to arbitration without obtaining the leave of the court.

Sarjoo Prosad, J.

1. The second appeal and the civil revision arise out of the same judgment of the court of appeal below. A preliminary objection has been raised that the second appeal is not maintainable.

2. The facts giving rise to the appeal and the application are that a suit for declaration of title and recovery of possession in respect of a small area of land in khata No. 248 forming part of plot No. 2846 was instituted by the plaintiffs-petitioners. The suit was filed in May, 1948. During the pendency of the suit on the 19th May, 1949, an application was filed for reference to arbitration purporting to be on behalf of the parties to the suit. The court on the basis of that petition made an order of reference. In the agreement for reference, it appears that five arbitrators were named to decide the dispute between the parties. On the 5th of September 1949, a document was filed on be-half of the arbitrators signed by three of them which was said to be an award given by the majority of the arbitrators concerned. The court, after having allowed time to the parties to file objections, if any, made the award a rule of the court and directed a decree to be passed on the basis of the award. It was against this decree that an appeal was filed to the court below on the ground that the reference was incompetent and the award was on the face of it illegal, and the court below overruling these objections affirmed the decree based upon the award. On these facts, it is quite clear that although an appeal may have been competent before the court of appeal below, a second appeal to this Court could not lie against the decision of the learned Subordinate Judge. The preliminary objection, therefore, must prevail and the appeal is dismissed as being incompetent.

3. The question, however, remains whether the application against the order of the learned Subordinate Judge should be entertained. There appear to be two vital objections to the award which, in my opinion, must prevail. It is firstly contended that the reference to arbitration was without any sanction being accorded to the guardians of the minors to enter into the agreement. It is pointed out that plaintiffs 3 and 4 were minors to the suit and so was defendant No. 3 also a minor. These minors were represented in the suit by their natural guardians. The natural guardians entered into the compromise but there is nothing in the order-sheet to indicate that these natural guardians sought the leave of the court to enter into the compromise on behalf of the minors, or that any such leave was accorded to those guardians. It has been repeatedly held that Order 32, Rule 7. Civil P. C., is as much applicable to the case of a guardian-ad-litem entering into a compromise or into an agreement for reference to arbitration as in the case of a natural guardian, appearing on behalf of the minors. In either case compliance with the provisions of Order 32, Rule 7 is essential, and that not having been done, the reference cannot be said to be a valid reference on behalf of the minors concerned.

In Kedar Nath V/s. Basant Lal, 18 Pat 271, this Court pointed out that where the next friend or guardian-ad-litem of a minor party agrees to join in a reference to arbitration, the leave of the court to do so on behalf of the minor must first be obtained by the next friend or guardian-ad-litem, and the leave must be expressly recorded in the proceedings in compliance with the provisions of Order 32, Rule 7 of the Civil Procedure Code; and the omission to obtain leave renders an award or any decree based upon it voidable at the instance of the minor. It is to be remembered that the suit was for declaration of title and recovery of possession in respect of a certain piece of land in which the minors as well as the other plaintiffs had a common case and so had the minor defendant a common case with the other defendants. That being so, the award based upon such a reference was not a valid award and could