ORDER :- This revision is directed against an order of the District Judge, Ganjam-Nayagarh affirming an order of the Additional Subordinate Judge, Berhampur, in Misc. Case 1 of 1949 arising out of Money Suit No.1 of 1948 on his file. Nakula Choudhury, the opposite party herein, filed a suit for the recovery of some money from the petitioner (defendant) after dissolution of the partnership that had been entered into between him and the defendant. When the trial of the suit was going on the parties referred their disputes to arbitration by five gentlemen, by an agreement dated 30-8-1948. The Court referred the matter to the arbitrators nominated by the parties. The reference was in these terms : "We appoint the following five respectable men as punchavetdars, and the means of the gentlemen are given below. The second paragraph of the agreement says that

"the arbitrators shall take evidence from the plaintiff and the defendant on 5-9-1948 and determine the extent of the liability of the defendant to the plaintiff. The defendant would thereafter deposit the amount so de termined by the arbitrators."

Paragraph 3 says :

"If the plaintiff would go to the temple of Sri Kapileswar Mahaprabhu and answer certain questions put to him by the defendant so as to dispel his doubts regarding the theft of certain amount belonging to Baikuntha Subudhi, the money deposited by the defendant with the arbitrators shall be paid over to the plaintiff and a receipt obtained therefore". 2. In pursuance of this agreement the arbitrators took evidence and passed an award (Ex.6) on 26-11-1948. The award says that the arbitrators fixed the liability of the defendant at Rs.3100 and that the defendant produced gold worth Rs.3100 and challenged the plaintiff to take the special oath. At that stage the plaintiff and his father went out with Padmalochan Padhy, one of the arbitrators for consultation amongst themselves. Immediately thereafter Padmalochan returned and said that he would not agree to the award and subsequently resigned from the arbitration. The result therefore is that the award is signed by the rest of the arbitrators and purports to be a decision of four of the five originally appointed by the parties.

3. When the award was filed in Court the plaintiff filed an objection questioning the validity of the award on the ground that in so far as the arbitrators purported to decide the dispute between the parties relating to the alleged theft of Baikunthas money, the award was invalid as it related to a matter not comprised in the suit. It does not appear that the defendant raised any objection to the award, but the plaintiff admittedly filed a petition objecting to the award. The Courts below have held that the decision of the arbitrators so far as it related to the theft of money belonging to Baikuntha Subudhi was extraneous to the subject-matter of the suit, but that part of the arbitrators decision could be separated from the part relating to the fixation of the defendants liability at Rs.3100. On that view they modified the award by directing that the decision relating to the theft of Baikunthas money may be ignored and that a decree for Rs.3100 may be passed in favour of the plaintiff. It is against this order that the defendant has now come up in revision.

4. The first point that has been urged, on behalf of the petitioner, is that the award itself is invalid as only four out of the five gentlemen have acted which they were not competent to do. The reference does not authorise either a majority award, nor does it contemplate any member resigning; indeed it does not make any provision for any such contingency. Section 8(b), Arbitration Act, says that

"If any appointed arbitrator refuses to act and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, the Court may fill up the vacancy".

In this case neither the parties nor any of the arbitrators applied to the Court for filling up the vacancy caused by the r