An agreement to abide by the decision of an arbitrator is considered a compromise of the claim, and Section 89 does not exclude the provision of Order 23 in cases of award.

Phillips, J.

1. The question referred to us for decision is

Where in a suit parties have referred their difference to arbitration without an order of the Court and an award is made, can a decree in terms of the award be passed by the Court under Order 23, Rule 3, or otherwise, the parties not accepting the award?

2. This question has frequently come up for decision in this Court and has almost invariably been answered in the affirmative.

3. In Nanjappa v. Nanjappa Rao (1912) 23 M.L.J. 290 it was held that an award in such circumstances was a lawful agreement, compromise and adjustment within the meaning of Section 375 of the Civil Procedure Code, 1882, which is the section corresponding to Order 23, Rule 3. In that case the previous decisions of this Court were referred to and followed. The subsequent cases in which the decision was under the Code of 1908 have held that Order 23, Rule 3 can be applied in. such circumstances. Chinna Venkatasami Naicken v. Venkatasami Naicken (1919) I.L.R. 42 M. 625 : 36 M.L.J. 291, Belagoduhal Virabadra Gowd v. Kalyani Gangamma (1926) 97 I.C. 465, Alagu Pillai v. Mayilappa Pillai (1923) 45 M.L.J. 76,, Chintalapalli Chinna Dorayya v. Chintalapalli Venkanna (1923) 76 I.C. 502 and Ayyannamma v. Ramaswami (1927) 53 M.L.J. 444.

4. The only cases in which a different opinion has been expressed are Venkatachala v. Rangiah (1911) I.L.R. 36 M. 353 : 21 M.L.J. 990 and Bodachari v. Muniyachari (1921) 14 L.W. 666. In the former case there was a mere agreement to refer but no award in pursuance of that agreement, and it was held that that was not an adjustment within the meaning of the Code. In the latter case, Krishnan and Odgers, JJ., were inclined to hold that Section 89 of the Civil Procedure Code was a bar to the application of Order 23, Rule 3 in such cases, but did not definitely decide the point. It will be seen, therefore, that so far as this Court is concerned the view taken almost unanimously has been that Order 23, Rule 3 is applicable in such circumstances; but this reference has been made because the Calcutta High Court and the Lahore High Court have held to the contrary. In Calcutta the leading case is Amar Chand Chamaria v. Banwari Lall Rakshit (1921) I.L.R. 49 C. 608, a, decision of Rankin, J., sitting as a single Judge, in which he followed an earlier decision of his own. This was followed by a Bench in Guimoni Dasi v. Tarini Char an Porel (1927) 104 I.C. 360. The Lahore High Court took the same view in Hari Prasad v. Soognidevi (1921) 3 Lah. L.J. 162 and based their decision on the provisions of Section 89 of the Civil Procedure Code. In Bombay Macleod, C.J., agreed with the Calcutta view in Shavakshaw v. Tyab Haji Aynb (1916) I.L.R. 40 B. 386 but in a subsequent case, Manilal Motilal v. Gokal Das Rowji (1920) I.L.R. 45 B. 245, he came to the opposite conclusion. The question was referred to a Full Bench and in Chanbasappa v. Baslingayya (1927) I.L.R. 51 B. 908 : 29 Bom. L.R. 1254 (F.B.) it was held that Order 23, Rule 3 was applicable. The Allahabad High Court (Full Bench) have taken the same view in Gajendra Singh v. Durga Kunwar (1925) I.L.R. 47 A. 637 (F.B.) although in a subsequent case, Baij Nath Prasad v. Narain Prasad (1927) 102 I.C. 608, a Bench of two Judges held that Order 23 did not apply in the particular case they were considering which was a case where the requirements of Clause 20, Schedule II, Civil Procedure Code, had been complied with, and it was held that the award should be treated as an award and not as a compromise of the suit. The main body of opinion is therefore clearly in favour of an affirmative answer to the question before us, but it will be advisable to consider the matter in its legal aspects.

5. In the first place, is Order 23, Rule 3 in terms applicable to the case before us? Rule 3 provides:

Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise....

6. If an agreement to