The court established the validity of filing an award based on a copy in cases where the original is unavailable, and affirmed the authority of the sarpanch to make decisions on behalf of the arbitrators in arbitration without the intervention of the Court.

1. This is an appeal against a decree following against an award with certain modifications under Para. 21, Schedule 2, Civil P.C., (Act 5 [V] of 1908). The Arbitration Act does not apply to this case and the matter falls within Schedule 2, Civil P.C.

2. The parties to this suit had certain disputes regarding the division of their property. They were members of a joint Hindu family and the defendant was the jahagirdar of a jahagir estate in the Gwalior State. The defendant desired partition, and as the parties were unable to agree regarding several matters incidental to the partition, they decided, with the assistance of the Home Member of the Gwalior State, to refer their disputes to arbitration. The reference is Ex. P2 and is dated 30th April 1935. This was a reference made before the matter reached the Court and accordingly falls within the purview of Schedule 2, Civil P.C., dealing with references without the intervention of the Court.

3. The property consisted of the jahagir property in the Gwalior State and certain other properties--some in British India and some in Gwalior. The matter having been referred to the arbitration of five arbitrators--two chosen by each side and a sarpanch chosen with common consent--an award was delivered on 28th May 1935. This is the award which is now said to be filed. Under this award all the non jahagir property was directed to be partitioned and the jahagir property being impartible was left as it is. The defendant being the jahagirdar naturally got the jahagir property and the plaintiff was given Rs. 20.000 in lieu of maintenance which he would have obtained from the jahagir estate had the parties not partitioned The parties were given the choice of resorting to another arrangement for maintenance equivalent to that which the plaintiff was getting from the jahagir estate, but we need not concern ourselves with that. The award also contained certain other matters which we need not enumerate at this stage.

On 24th August 1935, the plaintiff filed the application out of which this appeal arises to have the award filed. On 10th June 1935 the defendant had instituted a suit for partition. The partition suit was stayed pending the decision on the question of the award. According to the lower Court, the two suits were consolidated. That, however, appears to be inaccurate It seems that the partition suit was staved and the documents filed in the one case were admitted to evidence, in the other.

4. The award was ordered by the lower Court to be filed and a decree followed in terms of the award, with however one variation. The lower Court held that the question of maintenance was beyond the competence of the arbitrators. It further held that this question was separable from the rest, and accordingly struck out this part of the award.

5. The plaintiff appeals against this part of the decision which strikes out the portion of the award relating to the award of maintenance to him. The defendant filed a cross-objection in which he contends that the application for filing the award should be dismissed.

Objection was taken at the outset to the maintainability of the application on the ground that the original award has not been produced. All that the plaintiff produced in Court is what has been called a counter-part of the original award. The description is inaccurate because as a matter of fact the document produced is not a counter-part but a copy of the original. This copy is signed by the sarpanch who alone signed the original award.

6. It may be accepted at once that in the ordinary way an application for filing an award cannot be entertained if it is based on a copy. There are, however, exceptions to this, one of them being when the original cannot be obtained, or has been lost or destroyed.

7. In this case the original was signed by a Judge of the Gwalior High Court. He was the sarpanch, and it seems that, according to the State laws, the original has to be maintained on the files of the High Co