Hara Prasanna Bandopadhya vs Arab Ali and on his Death two of his Heirs and Legal representatives Jabeda Khatun and Another, minor by their Guardian ad litem, Mr. F.B. Counsel, The Deputy Registrar of this Court and Abbas Ali and Others and Sabdar Ali

This appeal is preferred by the defendant whose name is Hara Prasanna Bandopadya. The respondent, Sabdar Ali Choukidar, who does not appear, was one of the defendants in the suit brought by Hara Prasanna some years ago. That suit was eventually made over to arbitrators on the application of Sabdar Ali and some, but not all, of the other defendants. The decision of the arbitrators was against Sabdar Ali. He made an objection to the award but that was dismissed for default. He made another objection in the course of execution proceedings. That was also rejected. Now, he has brought the suit, out of which this appeal arises, to have the award set aside and the Courts below have set it aside on the ground that three of the defendants in the original suit, that is to say, Nos. 5, 6 and 7, were not parties to the application for reference to arbitration. In support of this view both Courts have referred to several decisions of this Court, one of them is the case reported as Girija Nath Roy v. Kanai Lal Mitra 43 Ind. Cas. 169 : 27 C.L.J. 339 at p. 343 to which I was a party. The view we took there was that the entire foundation of the Court''s jurisdiction to make the reference disappeared when it was found that all the persons interested had not joined in the application. It follows, therefore, that, in my judgment, the decision of the lower Appellate Court is correct and this appeal must b 2 dismissed. We make no order for costs, as Sabdar Ali Choukidar does not appear.

Suhrawardy, J.

I agree.