An oral award by arbitrators appointed out of Court, in a pending suit without the leave of the Court, is invalid under the Indian Arbitration Act, 1940.

R. K. Choudhary, J.

1. This civil revision application, No.834 of 1961, arises out of an order of the learned Additional District Judge, Muzaffarpur reversing that of the Munsif, First Court, Hajipur, passed in Title Suit No.34 of 1959. A second appeal, No.739 of 1961, has also been filed by the petitioners of the civil revision application, by way of precaution, from the same judgment and order.

2. The short facts are these: The plaintiffs opposite parties filed a suit against the defendants petitioners for a perpetual injunction restraining them from proceeding with any construction around the house of the plaintiffs, and their case was that the construction of the house of the defendants would obstruct the passage of light and air to the house of the plaintiffs and thus make the same unfit for habitation. The plaintiffs also filed an application for a temporary injunction against the defendants and another petition for appointment of a pleader-commissioner for holding local inspection. An order of ad interim injunction was passed in the case and a pleader-commissioner was also appointed, who submitted his report on the 46th of March, 1959. On the 17th March, that is, on the next day, an application was made on behalf of the plaintiffs before the trial Court stating that arbitrators had effected a compromise between the parties, and, as such, the plaintiffs did not want to proceed with the case. It was prayed that the suit be, accordingly, dismissed without adjudication and the order of ad interim injunction be vacated. No order was passed on this application as regards the dismissal of the suit, but the order of ad interim injunction was vacated. Subsequently, on the 13th of April, 1959, the plaintiffs filed another application for withdrawal of their earlier application filed on the 17th of March, 1959, alleging that the earlier application was a forged and fabricated one. The defendants opposed this application, and their contention was that the petition, dated the 17th of March, 1959, was a genuine one and had been filed at the instance of the plaintiffs because of the compromise arrived at between the parties through the intervention of the panches. Both the Courts below held that the petition filed on the 17th of March 1939 was a genuine document, and no fraud was committed in respect of the filing of the same. The trial court, however, rejected the petition filed on behalf of the plaintiffs on the 13th of April, 1959 because it held that the application filed on the 17th of March, 1959 was not only a withdrawal application but it was, for all purposes, a compromise between the parties, and, therefore, the plaintiffs Could not be permitted to resile from the same. The appellate Court, however, held that the entire case of the defence rested on the oral decision of the panches who never gave any written award, and, as an oral award was not permissible under the Indian Arbitration Act, 1940, it was invalid and could not be taken notice of. It, therefore, took the view that no Court could be compelled to record the decision of the arbitrators which was unlawful, under Order XXIII, Rule 3, of the Code of Civil Procedure. It therefore, allowed the appeal, set aside the order of the trial Court and allowed the plaintiffs to withdraw the application filed by them on the 17th of March, 1959 for dismissing the suit without adjudication. Being thus aggrieved, the plaintiffs have filed the above civil revision application as well as the second appeal by way of precaution, as stated above.

3. Counsel for the petitioners has pressed an argument that, though an oral award by arbitrators appointed out of Court, in a pending suit without the leave of the Court, may not be valid in law, the decision of the arbitrators having been accepted by the parties amounted to compromise in the suit by agreement between the parties and, as such, the application filed on behalf of the plaintiffs on the 17th of March, 1959 should have been t