JUDGMENT

1. This is a defendants' appeal against the order of remand dated 17th May 1930 passed by the Subordinate Judge of Bahraich. It arises out of a suit for cancellation of a deed of gift and for a declaration that it is void.

2. The suit was instituted on 19th September 1929. Issues were framed on 7th November 1929 and on that date the case was adjourned to 8th January 1930 for evidence. During the interval between the framing of issues and the case coming up for evidence, the parties, on the 17th November entered into an agreement referring their disputes relating to partition of the entire family property, which included the property to suit which had formed the subject of gift, to arbitration. In this agreement they stated that they did not want to fight out the case in Court and desired to have all their disputes settled through arbitrators and agreed to be bound by any decision, right or wrong, which the arbitrators chose to make. Four days, later, on 21st November 1929, the arbitrators gave their award dividing the entire family property and allotting the property which formed the subject of gift to the share of the donor. By this means they upheld the gilt made by the donor in favour of his daughter and daughter's son. When the case was taken up in Court on 8th January 1930, the defendant made an application to-the effect that there had been a complete adjustment of the suit by means of an agreement or compromise embodied in the agreement for reference and the award and asked that a decree may be passed in accordance therewith. The plaintiffs denied the reference and the award and pleaded that it was invalid and unenforceable. The trial Court held the agreement of reference and the award to be proved and to be binding upon the plaintiffs. It accordingly decided the suit in terms of the award. On appeal the learned Subordinate Judge has held that as the reference to arbitration was during the pendency of the suit and without the intervention of the Court and the procedure laid down by Section 89, Civil P.C. and the second schedule had not been followed, a decree in terms of the award could not be passed. He is further of opinion that Order 23, Rule 3, Civil P.C., cannot apply to the case.

3. The only question which we are required to decide in this appeal is whether a decree in terms of the award can be passed under Order 23, Rule 3, in a case where the parties to a pending suit have referred their differences to arbitration without the intervention of Court and an award has been made on the basis of it. The determination of this question rests mainly upon the interpretation to be placed upon the terms of Section 89 and Order 23 Rule 3, Civil P.C. Section 89, Sub-section (1), runs as follows:

Save in so far as is otherwise provided by the Arbitration Act 1899, or by any other law for the time being in force, all references to arbitration, whether by an order in a suit or otherwise, and all proceedings thereunder, shall be governed by the provisions contained in Schedule 2.

4. The Arbitration Act 1899, has no application to the case. The question is therefore narrowed down to the meaning to be placed upon the words "by any other law for the time being in force". The view accepted by the lower appellate Court is that these words, as used in Section 89, Civil P.C., cannot apply to a provision of the Code itself such as Order 23, Rule 3. We find ourselves unable to accept this interpretation. These words seem clearly to mean any law other than the Arbitration Act and other than the provisions contained in Schedule 2. We can see nothing in the language of this rule to exclude all the provisions of the Civil Procedure Code other than those contained in the Schedule 2. from the purview of the words under consideration. The words "any other law" are sufficiently wide to include the provisions of Order 23, Rule 3, which is not one of the provisions contained in Schedule 2. The whole object of Section 89, seems to be to inser