An award given on reference without the intervention of Court, unless made a rule of the Court, has in law no operative effect and cannot be pleaded even by way of defence.

K.Ahmad, J.

1. Both these applications in revision arise out of the same suit and are directed against a common order dated the 16th December. 1957. The application No. 2 of 1958 is by the plaintiffs while the other, namely, one bearing No. 280 of 1958, is by the defendants.

2. The suit giving rise to these petitions is one for partition, both of movable and immovable properties which are at present said to be jointly owned and possessed by the members of a common family governed under the Muhammadan Law. The facts of this case, to a large extent, barring a few here and there are admitted and the controversy at present before me is exclusively confined to one point only which the court below has at present disposed of at the instance of the defendants as a preliminary issue in the case.

3. It appears that some time in the early part of 3953 there was some difference among the members of the family over the possession of the properties jointly owned by them. That led to a reference to arbitration outside Court on 2-5-1953, to a body of 3 arbitrators: (1) Haji Muhammad Tahir, (2) Hussain Mian and (3) Haji Shamsuddin alias Karu. That was both for the settlement of their entire controversy as also for the partition of the properties jointly owned and possessed by them.

Now so far as the immovable was concerned that, as it appears from the facts on the record, included only a few houses, but the movable covered three items (a) grains, (b) utensils and (c) ornaments worth Rs. 32,000/-. The arbitrators having heard the parties gave a written award which is dated 4-5-1953, but that is signed only by two of the arbitrators namely, (1) Hussain Mian and (2) Haji Shamsuddin alias Karu. That means the award did not bear the signature of the third arbitrator, namely, Haji Muhammad Tahir. Perhaps this was due to the fact that there was among them some difference over the partition of ornaments with the result that the award, instead of resolving the dispute, aggravated it and the parties, in order to vindicate their rights, first went to the criminal Court.

But the Criminal Court did nothing more than taking over the custody of those ornaments in its own possession through police, and thereafter it dropped the proceeding on the ground that the controversy as raised between the parties was of a civil nature. Accordingly, as a first step towards the adjudication of this matter in the Civil Court the plaintiffs in the first instance on 16-11-1953, put in an application in the Court below under Section 8 (1) of the Arbitration Act, 1940, for the appointment of a third arbitrator in place of Haji Shamsuddin alias Karu on the ground that he was guilty of misconduct.

That application was registered as Miscellaneous No. 45 of 1953, but ultimately on 17-11-1953, it was dismissed. Having thus failed in their first attempt the plaintiffs thereafter on 24-5-1954, filed another application before the Court. That was under sections 14, 16 and 33 of the Arbitration Act and therein the main allegation made was that so far the arbitrators had not effected the partition of the ornaments so they should be directed to get that part of the partition also completed.

This was numbered as Miscellaneous Case No. 15 of 1954 and it was disposed of by an order dated 23-12-1954, wherein the Court held, as is stated in the order under revision, that "the award was incomplete and directed the arbitrators to partition the ornaments and directed further that after completing the award the arbitrators shall give notice to the parties in writing of the making and signing of the award and shall file the award in Court in 3 months."

As against this order there was an appeal taken to this High Court on 14-1-1955, which was numbered here as Miscellaneous Appeal No. 9 of 1955. This was disposed of by the order dated 21-3-1956, whereby this Court set aside the order and judgment of the Court below passed on 23-12-1954, and held that the application filed in Miscellaneous Ca