The original intention of the parties in choosing their arbitrators should be respected, and the court should not force a new arbitrator upon the parties against their wish.

JUDGMENT

Cunliffe, J. - This rule was granted in the following circumstances: The parties were three brothers who were in dispute with regard to certain land and by way of endeavouring to compose their differences they decided to submit them to a private arbitration. This was accordingly done by means of an agreement which was drawn up. But subsequently further disagreement arose which resulted in the petitioners before the Court now filing a suit for partition. The other side, however, and the arbitrators went on with the arbitration and the arbitrators made an award which was filed under para. 20, Sch. 2, Civil P.C. For some reason or another this award was not given effect to, but there was an order issued by the Court for a stay of the partition suit under para. 18, Sch. 2. The arbitrators were ordered by the Court to proceed fresh and then one of them declined to act. Whereupon cross-applications came before the Court, one on the part of the respondent to this petition asking the Court to appoint an arbitrator in place of the gentleman who had refused to act, and the other application on the part of the petitioners here to have the stay order, which had been issued by the Court in relation to the partition suit, set aside and to allow the suit to continue.

2. The learned Judge preferred the first application. He ordered a new arbitrator to be appointed, and it is on the question as to whether that order on the part of the learned Judge was legal that we granted the rule. The learned Judge, was, if I understand the position rightly, making use, when he took this course, of the provisions contained in para, 5, Sch. 2 to the Code and it falls to be determined as to whether it was possible for him to put this paragraph into operation in the circumstances of the case. Sch. 2, Civil P. C, is of course too well known for me to dilate upon its objects with great particularity; but I may say that it seems to me primarily to be intended to deal with that type of arbitration which comes into being after a suit had been filed, and when the parties come to the Court to ask its sanction for them to substitute arbitration proceedings for their original intention of having the Court to decide their dispute. But in the latter part of the Schedule there are paras which refer back to the earlier or main paras of the Schedule and make them operative in certain circumstances. The key paragraph in this regard is para. 19, and that paragraph is in the following terms:

The foregoing provisions, so far as they are consistent with any agreement filed under para. 17, shall be applicable to all proceedings under the order o reference made by the Court under that paragraph, and to the award and to the decree following thereon.

3. Of the important words in para. 19 are undoubtedly the words: "So far as they are consistent with any agreement filed under para. 17." To test whether the particular circumstances in this case warrant the action of the learned Judge in appointing a fresh arbitrator, it is necessary to consult the actual agreement come to between the parties. This agreement, the translation of which is before me, is a very short one and it recites that there is this dispute about land and that the three brothers having come to an agreement through the intervention of several (5) gentlemen, that:

Our rights and shares in respect of the aforesaid properties, etc., might be determined and partitioned by metes and bounds by taking evidence from us, we, this day, appoint you gentlemen as arbitrators and promise hereby that the decision arrived at by you in respect of our individual rights and Shares after partition by metes and bounds, or any judgment passed thereon relating to the aforesaid properties, etc, will be considered by us as the decision passed by the Hon'ble High Court, and against that we also will not raise any objection. If such an objection is raised, that will be rejected.

4. The language as can be seen is not very precise, but it seems