Award by arbitrator binding.

Defendants 1 to 11 are the appellants in this second appeal. The plaintiff sued for a declaration of his right of way along the pathway indicated as ABCDEFGHJKL in the plaint plan for his cattle, carts and men to go to his land and for an injunction restraining the defendants from interfering with his user of the pathway and for the restoration of the pathway at HJ to its original condition. The suit has been decreed by the Courts below on the finding that the plaintiff was entitled to the right of way claimed by him and that the obstructions and alterations caused by the defendants in the pathway so as to interfere with the plaintiff’s exercise of his right of way were unjustified. There was a decree for a prohibitive and a mandatory injunction in favour of the plaintiff. There is ample evidence in the case to support the finding of the lower appellate Court that the pathway in question was a pathway over which the plaintiff had the right claimed by him in his plaint. The mere fact that the way is shown as a pathway in respect of a considerable portion of the track is not conclusive of the matter and the evidence of the Tahsildar and the Revenue Inspector and the other witnesses is to the effect that there was a good cart track with rows of trees standing on each side of it and therefore the plaintiff must be held to have established his claim to use the pathway as a cart track.

Mr. Narayanaswami Aiyar argues that this issue is open to consideration by me in this second appeal for the reason that there was a reference to arbitration of the disputes between the parties during the pendency of the suit in the trial Court and an award passed by the arbitrators which is marked as Exhibit P-16. His contention is that the reference pending the suit though not made at the instance of the Court or with its knowledge, still, constituted an agreement between the parties to abide by the decision of the arbitrators and the award of the arbitrators operates as an adjustment or compromise of the suit within the meaning of Order 23, rule 3, Civil Procedure Code. Before the enactment of the Arbitration Act of 1940 it was held by a Full Bench of this Court in Subbaraju v. Venkataramaraju1, that where the parlies to a pending suit have referred their difference to arbitration without an order of the Court and an award is made, a decree in terms of the award could be passed by the Court under Order 23, rule 3, Civil Procedure Code, even though the parties do not accept the award as binding upon them. This decision has been followed and applied to a similar case even after the enactment of the Arbitration Act of 1940 by a Division Bench of this Court in Arumuga v. Balasubramania2 . The learned Judges construed the language of the proviso to section 47 of the Arbitration Act, so as to make it applicable to a case where there has been a mere agreement to be bound by a future award and an award is given on such a reference. They held that Order 23, rule 3, was not confined to a case where after the award is made, the parties consent to its being filed as a compromise or adjustment of the pending suit and that the proviso to section 47 also did not bear that interpretation. Sitting singly I am bound by this decision though I consider that it is probable that the Legislature intended that a private reference to arbitration in a pending suit without the knowledge of the Court and without its direction which results in an award should not be made a rule of Court unless all the parties interested in the suit consent to the award being filed into Court as a compromise or adjustment of the suit. Indeed the Calcutta High Court had consistently taken that view before the Arbitration Act of 1940 and the proviso to section 47 appears to confirm that view. The further question argued in the case whether a reference to arbitration in a pending suit is governed exclusively by Chapter IV of the Arbitration Act or whether Chapter II of the Act which deals wi