An arbitration agreement is invalid and legally ineffective, if all the defendants do not join in the execution of the agreement.

Kanhaiya Singh, J.

1. Tliis is an appeal from the order of the Additional Subordinate Judge, Muzaffarpur, dated 31-3-1955, setting aside the award given by the arbitrators outside the Court.

2. The facts are short and simple. During the pendency of Title Suit No. 83 of 1951 in the Court of the 1st Munsif, Muzaffarpur, relating to a portion of kasht lands belonging to Kanhaiya Singh, the plaintiffs and the defendants first party by a written agreement dated 9-8-1951 referred, without the intervention of the Court, their dispute in respect of the aforesaid suit land and other matters to the arbitration of five persons, namely, (1) Ramautar Singh, (2) Ram Prasad Singh and (3) Jugeshwar Singh, all of village Belaur, (4) Ramantar Singli of village Mohini and (5) Barham-deo Singh of village Nasratpur, who are defendants second party, and on the same day, that is 9-8-1951, the arbitrators gave their award (exhibit 4). Subsequently, the arbitrators registered the award on 8-9-1951. The registered award is exhibit 4(a). On 6-11-1951 the plaintiffs presented an application before the 1st Subordinate Judge, Muzaffarpur, under Ss. 14 and 17 of the Arbitration Act, alleging that the arbitration agreement (exhibit 3), the original award and the registered award were in the custody of arbitrator Ramautar Singh of Belaur and praying that the said arbitrator be directed to file the award in Court and that, after hearing the parties, a decree in terms of the award be passed. (2) Two sets of written statements were filed, one on behalf of defendants Nos. 1, 2, 3, 4, 7 and 9 and the other on behalf of defendants Nos. 5, 6 and 10 to 15. Their defence is practically common. They challenged the existence and validity of the arbitration agreement and also the validity of the award based upon invalidity ot reference. They also attacked the validity of the award on the grounds of want of notice, total absence of hearing and misconduct of the arbitrators. They also denied that the notice of the filing of the award was served upon them. They further impugned the award on the ground that the subject of the dispute was already pending decision in a Court of competent jurisdiction. The award was further challenged as invalid on the ground that it exceeded the terms of the reference. They asserted that the entire arbitration proceeding was a fake and the award was forged and fabricated through the machination of the Belaur arbitrators.

3. The learned Subordinate Judge held that the arbitration agreement and the award were not genuine, valid and legal. He held further that the award was wholly void and accordingly set it aside and dismissed the suit.

4. The first and important question for consideration is whether there was any agreement at all to refer the dispute to arbitration, and if there was any agreement, whether it was valid and binding upon the defendants first party. The arbitration agreement which has been termed as Panchnama is exhibit 3. It bears the thumb mark of Madho Singh (defendant No. 1), Ram Lakhan Singh (defendant No. 2), Dhorai Singh (defendant No. 4), Sahai Singh (defendant No. 7) and Ramautar Singh (defendant No. 9) and is signed by Bigu Singh (defendant No. 3), who purports to have signed it for self as well as on behalf of the other defendants.

These defendants have explained the circumstances in which they happened to affix their thumb marks or signatures to the document which was characterized by them as Panchnama. Their defence was that they put their signatures or thumb marks on blank papers regarding their dispute in respect of bakasht lands in tauzis Nos. 16818 and 16821, and their apprehension was that the said papers had been fraudulently utilised for the present Panchnama. On a careful consideration of the evidence the learned Subordinate Judge held that there was in fact no reference to the arbitrators for decision regarding the kasht lands of Kanhai Singh. In his opinion, the defence was right, and six of the defen