JUDGMENT

1. This appeal arises out of an application under paragraph 20 of the 2nd Schedule of the Civil Procedure Code, which has been rejected by the Court below.

2. The parties to the application are all members of a Hindu family and are Brahmans by caste. They reside at Benares and are wealthy, carrying on a large business in the purchase and sale of precious stones and jewelry.

3. The applicants are all the male members of the joint family except one. The exception is the sole defendant Joshi Ram Nath, against whom the application was made.

4. The case for the applicants was that Joshi Ram Nath came of age in 1914 and took to riotous living and incurred heavy debts. This led to disputes, on which all the members including Ram Nath agreed to partition the family property and to separate. That accordingly an agreement was drawn up, and duly executed on 5th July 1914 and presented for registration on 18th July 1914.

5. That under the agreement one Panna Lal was appointed arbitrator to divide up the estate and was given a period of four months within which to carry out the partition. That because the books of the business were not available, having been filed in a civil suit then pending against the Raja of Amethi, the parties agreed to give the arbitrator further time and on October 21st, 1914, filed a joint application before him asking him to fix a date for decision after the expiry of two months from that date.

6. That the arbitrator commenced his proceedings in the end of December 1914 after the receipt of the books and finally passed an award on 25th January 1915. That the, award was a good one and binding on the parties, and should be filed and a decree passed in accordance therewith, Ram Nath Joshi, defendant, in reply to the application pleaded.

(1) that he did agree to the partition of the estate through arbitrators but at no time agreed to Panna Lal being the arbitrator, that the, plaintiff No. 1 Joshi Damodarji had named certain other persons to whom he (defendant) had agreed but fraudulently and without the defendant's knowledge had the name of Panna Lal entered in the agreement and in ignorance thereof the defendant executed the same;

(2) that when he discovered the fraud, he gave several notices to Panna Lal to the effect that he (defendant) did not agree to the arbitration and that Panna Lal was not to proceed with it;

(3) that if he did execute the agreement, he had good and valid reasons for withdrawing from it (1) because the arbitrator was a friend and under the influence of Joshi Damodarji with whom he had money dealings, and (2) because he was an insolvent;

(4). that the award was not binding in that it had not been passed within the time limited by the parties, and that he (defendant) had not agreed to any extension of time;

(5) that the arbitration proceedings were all ex parte as against the defendant, that no, notice thereof was given to him nor was he informed that if he did not appear, the arbitrator would proceed ex parte as against him, that the arbitrator took no evidence on his behalf and all his proceedings were in bad faith as, in fact, there was no hearing of the case at all by the arbitrator;

(6) that the arbitrator had left undecided several points in dispute and had decided several points not referred to him by the parties;

(7) that the award had not been duly, delivered by the arbitrator;

(8) that one of the parties to the submission, viz., Gauri Shankar died after the submission and before the award and the proceedings were, therefore, null and void.

7. The Court below held on the eight issues framed by it as follows:

(1) That the defendant Ram Nath Joshi did, of his own free will and accord and without the exercise of any undue influence, execute the agreement to refer the matters in dispute to the arbitration of Panna Lal.

(2) That the defendant did withdraw from the arbitration and that he had good grounds for so withdrawing.

(3) That the award had not been duly delivered in the presence of the defend