JUDGMENT

1. This is a miscellaneous appeal directed against the order passed by the Civil Judge of Rae Bareli superseding the reference to arbitration in a pending suit. The plaintiffs-appellants filed a suit on 26th September 1938, for redemption of a usufructuary mortgage executed by their predecessor-in-interest in favour of the predecessor-in-interest of the defendant for a sum of Rs. 15,000. The plaintiffs' case was that the mortgage money and interest had been paid from the usufruct of the property and the amount of Rs. 3230-8-0 was due to them from the defendant as having been overpaid to the mortgagee. The mortgagee on the other hand pleaded that a large sum of Rs. 35,000 was due to him on a statement of account. The Civil Judge of Rae Bareli, Mr. Gulab Chand Srimal framed as many as eight issues on 17th November 1988, and fixed the case for evidence on 23rd January 1939. Upon this date the plaintiffs were represented by their counsel and a general agent while the defendant was represented by his counsel and a general agent. It appears from the proceedings of that date that the parties agreed to refer the matters in dispute between them to the arbitration of Mr. Saiyid Kalbe Abbas an advocate of Rae Bareli. The arbitrator was given full powers to decide the whole suit. Mr. Kalbe Abbas was awarded Rs. 350 as fee for arbitration. He was directed to file his award on 9th March 1989. This order was signed by the counsel for both parties but was not signed by their general agents.

2. The arbitrator started proceedings from 29th January 1989. He recorded evidence of parties during the course of arbitration proceedings. He was unable to file the award on 9th March 1939, as directed and obtained an extension of time till 13th April 1989. On this date also the award could not be filed and he obtained another extension of time till 1st May 1939. On 28th April 1939 the defendant through his general agent, Jamuna Persad, who had throughout represented him in Court as well as before the arbitrator, filed an application before the arbitrator expressing non-confidence in the arbitrator on the ground that he was a counsel for the taluqdar of Babua, for whom plaintiff 8, a relative of his, was a mere benamidar. The arbitrator repudiated the allegations and referred the defendant to move the Court in the matter. His order on the back of the application shows that he was not at all keen to decide the case, which he said was "now ripe for argument and final decision". In the order the arbitrator said that if the arbitration was not superseded and he was allowed to proceed with the arbitration the time for filing the award might be extended for a fortnight after 1st May 1939. The defendant filed an application on 1st May 1939, before the Court in which the allegations were repeated in greater detail and it was urged that no extension of time should be granted to the arbitrator for filing the award. These allegations were controverted by the plaintiffs.

3. The learned Civil Judge of Rae Bareli, Mr. Kali Charn Agarwal, without examining the allegations contained in the defendant's application, came to the conclusion that enough time had been allowed to the arbitrator to file his award and he was not inclined to grant further time to him. Accordingly he superseded the reference. He then went on to consider whether the reference was valid by reason of the fact that the defendant's counsel had no authority to refer the matter to arbitration. He believed the evidence of Jamuna Persad, general agent, and held that he did not signify his assent to the arbitration, although he was present with his counsel on the day when the reference was made. The result of his order was that he set aside the reference to arbitration and recalled all the papers from the possession of the arbitrator. The plaintiffs have challenged the order of the lower Court superseding the arbitration by way of appeal under Section 104(1)(a), Civil P.C. A preliminary objection has