The consideration for a reference to arbitration must be lawful. If the consideration is to stifle the prosecution, the agreement is invalid under Section 23 of the Contract Act.

( 1 ) THIS is an application in revision. Originally it was filed as a second appeal, but a learned brother of mine came to the conclusion that no appeal lay. He, however permitted this appeal to be treated as a revision and, therefore, it is -being decided as a revision.

( 2 ) A preliminary objection has been taken by the learned counsel for the opposite party that no revision lies to this Court against an order refusing to record an award and reliance was placed on a Full Bench decision of this Court in the case of Gobind Das v. Mt. Indrawati, AIR 1938 All 557.

( 3 ) BEFORE I deal with the preliminary objection certain facts are necessary. It appears that there was a criminal case pending under Ss. 147/352 and 504,. P. C. read with Section 106, Cr. P. C. for a long time. Some other disputes about cattle trough, door, nabdan, neeb tree, Nesuba etc. also arose between the parties. The parties by an agreement dated 8th February, 1950 referred their disputes to arbitration of certain persons. The arbitrators gave their award on the 20th of february, 1950. An objection was taken under Section 30 of the Arbitration Act that this award should not be recorded as the reference to the arbitration was made for the purpose of stifling the prosecution during the pendency of a non-compoundable case. That objection has found favour with the courts below and they have refused to record the award. Aggrieved by the decision the appellant has come to this Court.

( 4 ) COMING to the preliminary objection, in the case of AIR 1938 All 557 (FB), it was held :

"where the Court has set aside an award and superseded the arbitration pending a suit which is consequently to be tried by the Court, the Court cannot be considered to have decided a case within the meaning of Section 115 and no revision lies from such an order. No distinction can be drawn between an order superseding a reference to arbitration before the award has been delivered and after the award has been delivered. In either case the result is that the Court begins to hear the suit in accordance with Para 8 or Para 15 (2) of Schedule 2".

The Full Bench in that case was only considering a case of reference to arbitration through the intervention of the court. If there is a pending suit and parties agree to refer to arbitration and then for some reason the award is not accepted, then the court is still seized of the case and the arbitration proceeding would be considered to be of an interlocutory nature and, in that event, no case would have been decided; but where the arbitration proceedings take place without the intervention of the court, outside the court, then, in that event, if an application is made requesting the arbitrator to file the award and further a prayer is made that a decree in connection with the award be made and when that award is set aside, there remains nothing pending in the court, and it cannot be said that the case has not been decided. That Full Bench, to my mind, does not apply to the facts of the present case, because that was a case of an arbitration through the intervention of the Court. Under the circumstances it was held that there was no case decided and no revision lay.

( 5 ) IN case the court has refused to exercise its jurisdiction on a ground that the reference was invalid then this Court can interfere in revision. But the sole question involved in this case is whether the decision of the court below on the point whether the consideration of the reference was to stifle the prosecution or not is correct. To a certain extent this is a mixed question of law and fact As a fact this should be binding upon me in second appeal, but whether those conditions did amount to stifling of prosecution in law and did make the contract illegal under Section 23 of the Contract Act, will be a question of law.

( 6 ) IN order to consider this aspect we must refer to the agreement itself. The relevant translation of the agreement is as follows :

"we, the firs