The main legal point established in the judgment is that an award passed on a reference to which all the parties interested in the dispute are not parties is illegal and should be set aside. The jurisdiction of the Court in making the reference to the arbitrator is governed by Sch. 2, para. 1, Civil P.C., which requires all parties interested in the subject matter in dispute to join in asking the Court to make a reference.

Madhavan Nair, J.

1. This is an application under Section 115, Civil P.C., to revise the order of the Subordinate Judge of Bapatla making the award passed by the arbitrator in O.S. No. 76 of 1923 a decree of Court. The plaintiffs suit was for a declaration of his title to the properties in the schedule together with mesne profits. There were nine defendants in the suit. Defendants 6 to 9 were alleged to be lessees of the properties holding them from the other defendants. A decree for mesne profits was also asked for in the plaint. After the issues were framed in the course of the suit, the plaintiff and defendants 1 to 5 put in a petition asking the Court to refer the subject matter of their dispute to the decision of an arbitrator under para. 1, Son. 2, Civil P.C. They appointed one Suryanarayana of Bezwada as arbitrator for the purpose of enquiring into and deciding upon the allegations in the plaint and in the written statements

2. and they undertook that they shall without filing an appeal etc, abide by the award which the said parson shall give either after holding an enquiry or without an enquiry.

3. In due course the arbitrator passed an award and an application was made to the Subordinate Judge to make it a decree of the Court. Objections were filed by defendants 1 to 5. One of them was that the award should not be accepted for the reason that the arbitrator heard evidence of the plaintiff in the absence of the defendants. The learned Judge overruled this and the other objections and passed an order which is the subject matter of this petition.

4. Mr. Govindarajachari for the petitioners, i.e., defendants 1 and 2, argues that the decree and the award should be set aside (SIC) the ground that all the parties interested in the dispute were not parties to the reference. This argument is based on the fact that defendants 6 to 9 were not parties to the reference. It has been decided in a series of cases in this Court: see Polita Pavana Panda v. Narasinga Panda [1919] 42 Mad. 632; Bhagavanulu v. Seetharamaswami A.I.R. 1923 Mad. 502; Venkataramanujacharlu v. Vasudeva Acharyulu [1926] 23 M.L.W. 769 and Rengareddi v. Chinasidda Reddi A.I.R. 1927 Mad. 1154 that an award passed on a reference to which all the parties interested in the dispute are not parties, is illegal and should be set aside. This proposition is not disputed by Mr. Raghava Rao, the learned advocate for the respondents. But he contends that the petitioners should not be allowed to raise this objection now, because that was not raised before the lower Court and that even if they are to be permitted to raise it in this Court for the first time, a decision should not be given in their favour without calling for a finding from the lower Court on the question whether defendants 6 to 9 are interested in the dispute in the suit to which they along with others are parties.

5. Neither of these contentions can be accepted. The question now raised relates to the jurisdiction of the Court in making the reference to the arbitrator. Sch. 2, para. 1, Civil P.C., clearly states that all the parties interested in the subject matter in dispute should join in asking the Court to make a reference; it follows that if any of such parties does not join in the application, the Court has no jurisdiction to make the reference and the arbitrator can have no jurisdiction to pass an award on the reference. The question as it relates to the jurisdiction of the Court was allowed to be raised for the first time in this Court in Polita Pavana Panda v. Narsinga Panda [1919] 42 Mad. 632: see also in Venkataramanujacharlu v. Vasudeva Acharyulu [1926] 23 M.L.W. 769. This contention must therefore be overruled.

6. As regards the second contention that the objection now raised should not be given effect to without a finding from the lower Court see in this connexion Bhagavanulu v. Seetharamasivami A.I.R. 1923 Mad. 502 agree that it may perhaps be necessary in certain cases that the Court should cal