JUDGMENT

Tek Chand, J. - One Nathu Mal died sonless in 1908 leaving him surviving a widow, Mt. Puran Devi, and two daughters Mt. Durga Devi plaintiff-respondent and Mt. Parbati defendant-appellant. Both these daughters are married and Mt. Parbati has got a son named Piare Lal. Mt. Puran Devi died on 22nd January 1925, and disputes arose between the daughters about succession to the property of Nathu Mal. On 11th April 1925 an agreement was executed by Mt. Parbati and Mt. Durga Devi referring the dispute to the sole arbitration of one Mansa Ram.

2. On 30th April 1925 Mt. Durga Devi filed an application under Schedule 2, para. 17, Civil P.C., in the Court of Mr. Barkat Ali, Senior Subordinate Judge, Ludhiana, praying that the aforesaid agreement be filed in Court, and a reference made to the arbitrator to decide the dispute and deliver an award. Various adjournments were granted principally owing to the difficulty in having the summonses served on the opposite-party Mt. Parbati. As she failed to appear, the Court on 13th November 1925, directed ex-parte proceedings to be taken against her. On that date the Court also passed an order directing the plaintiff's mukhtar "to produce the arbitrator with the faisla salsi (award) on 18th December 1925." On that date the learned Judge was on leave and the case was adjourned to 25th January 1926. In the meantime the arbitrator had started proceedings on 13th December 1925, and as Mt. Parbati did not appear before him. He delivered an ex-parte award on 7th January 1926.

3. On the date fixed for the hearing of the case, i.e., 25th January 1926, the arbitrator appeared in Court and filed his award. Time was granted to the parties to file objections on or before the 6th February 1926. On that date Mt. Parbati appeared and filed a number of objections against the award. The case was next taken up on 12th April 1926, on which date Mr. Barkat Ali passed an order holding that the proceedings taken up to that date had not been quite legal inasmuch as no order under para. 17(3) had been passed directing the agreement to be filed nor had any order issued to the arbitrator under Clause 4 of the same paragraph. He accordingly directed that the case should "begin denovo according to the provisions of para. 17," and called upon Mt. Parbati to show cause why the agreement be not filed.

4. It is important to note that this order has been interpreted by Mr. Barkat Ali's successor, Mr. Muhammad Hassan, who has decided the case, as one superseding the award dated 7th January 1926, and both Mr. Mehr Chand for the appellant and Mr. Fakir Chand for the respondent are agreed (though on different grounds) that this order had the effect of setting aside the award.

5. On 12th April 1926, after the above order had been passed both parties were examined at length as to the circumstances under which the agreement dated 11th April 1925, to refer the dispute to arbitration had been executed and the following issue was framed:

Was not the agreement freely consented to by Mt. Parbati?

Onus probandi on defendant.

6. The case was adjourned for evidence to 18th October 1926, but for one reason or another no progress was made for a whole year until 2nd July 1927, when Mr. Muhammad Hassan took it over. On that date an application was presented by the appellant stating that it was useless to make an enquiry into the legality of the agreement dated 11th April 1925, as the arbitrator had already made an award on 7th January 1926, and the reference to him had exhausted itself. The respondent was ordered to give a reply to this application and in the meantime evidence was recorded. On 20th July 1927, the learned Subordinate Judge passed an order holding that the defendant-appellant had failed to prove that the agreement had not been voluntarily executed by her and ordered that the agreement be filed and a reference made to the arbitrator directing him to file a fresh award on or before 9th August 1927.

7. Against this order a miscellaneous