John Beaumont, J.

1. Neither the learned Subordinate Judge nor the High Court dealt with the objection that the reference was not justified by Section 20 of the Evidence Act. That section is in these terms: " Statements made by persons to " whom a party to a suit has expressly referred for information " in reference to a matter in dispute are admissions." It is obvious that a reference to an outside party to decide matters in dispute in a suit, and the question of costs, is not a reference to that party for information in reference to a matter in dispute, and if the reference is to be regarded as made only under Section 20 it was a bad reference. However, the reference might have been made under the provisions of para. 7 (1.) and (3.) of the 2nd Schedule to the Code of Civil Procedure, and their Lordships will treat the reference as so made, as the courts in India seem to have done, and regard the allusion to Section 20 of the Evidence Act as a mistake.

2. The second objection requires more consideration. [His Lordship then referred to the terms of Or. 32, Rule 7, of the Code of Civil Procedure, and continued:] The learned Subordinate Judge explained in his judgment disposing of the objections what took place in relation to the application for reference. He said that Sohan Lal in the first instance had not signed the application for a reference, and accordingly the learned judge directed that Sohan Lal should be brought before him the next day. Sohan Lal duly appeared the next day and verified the agreement. The learned judge considered that, since Sohan Lal signed the agreement without qualification, that is, without specifying whether he was acting in his own capacity or as guardian ad litem of the minors, he must be taken to have signed in all capacities in which his signature was required, and their Lordships are disposed to accept that view. The learned judge further considered that by referring the matter to arbitration the court must be taken to have been satisfied that the reference would be for the benefit of the minors. There was, indeed, no reason to doubt this, because the interest of the minors was identical with that of the other defendants, their father and uncles, and there was no reason to suppose that the interest of the minors was likely to be sacrificed. At the same time, it is clear that the terms of Or. 32, Rule 7, were not complied with. There was no formal application by the guardian ad litem for the leave of the court to his entering into the agreement for reference to arbitration, nor was any such leave formally given, or expressly recorded in the proceedings. The note on the record quoted above does not show that the judge realized that he was dealing with the guardian ad litem of minors. The requirement in Or. 32, Rule 7, that the leave of the court be expressly recorded in the proceedings was added in 1908, and Sir Thomas Strangman, for the appellant, says that the addition to the rule merely gave statutory effect to the previous practice. Be that as it may, the rule is imperative and, in their Lordships view, its terms must be strictly complied with. Their Lordships agree with the view of the High Court following on this point a ruling of a Full Bench of the Allahabad High Court in Mariam Bibi v. Amna Bibi I.L.R. [1937] A. 317, disagreeing with certain other Indian rulings, that Or. 32, Rule 7, applies to an agreement to refer matters in dispute to arbitration. Such an agreement, which removes the decision of a matter in dispute from the jurisdiction of the court and refers it to some outside party, is clearly an agreement with reference to the suit, and not only falls within the terms of the rule, but comes within the mischief at which the rule appears to be aimed. The interests of minors might well be sacrificed by an improper reference to arbitration, and it is necessary that their interest be protected by the court. If minors successfully challenge an agreement to refer as not made in compliance with Sub-rule 1 of Rule 7, it is avoided against all parties under Sub-rule 2.

3. Sir Thomas Strangman has taken a second point, namely, that it is too late to challenge the award since no appeal lay from the decree of the Subordinate Judge made in terms of the award. In support of his argument he relies on the provisions of Section 16, Sub-section 2, of the 2nd Schedule to the Code of Civil Procedure. The section is one of a group of sections conferring powers on the court in relation to an award made on a reference-in a suit. Section 12 gives power to the court to modify the award in certain cases. Section 14 empowers the court to remit the award or any matter referred to arbitration to the reconsideration of the arbitrator in the cases specified. Section 15 provides that no award shall be set aside except on the specific grounds mentioned, or the award " being otherwise invalid." Section 16 provides that where the court sees no cause to remit the award and no application has been made to set aside the award, or the court has refused such application, the court shall, after the time for making such application has expired, proceed to pronounce judgment according to the award. Then Sub-section 2 provides that upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except in so far as the decree is in excess of, and not in accordance with, the award. The argument of Sir Thomas Strangman is that under the section the decree of the Subordinate Judge is final, and for this he relied on the case of Mariam Bibi v. Amna Bibi I.L.R. [1937] A. 317.

4. The ruling of the court in that case that Or. 32, Rule 7, applies to an agreement to refer to arbitration has already been noted with approval. A further question referred to the Full Bench was " whether an objection to the validity of reference to " arbitration comes within the provisions of Section 15 of the " 2nd Schedule to the Code of Civil Procedure." The learned Chief Justice and Harries J. considered that it did, relying on the words " being otherwise invalid" in Section 15; Iqbal Ahmad J. considered that it did not. On this question their Lordships agree with the view of Sir Iqbal Ahmad. In their opinion all the powers conferred on the court in relation to an award on a reference made in a suit presuppose a valid reference on which an award has been made which may be open to question. If there is no valid reference, the purported award is a nullity, and can be challenged in any appropriate proceeding. By way of contrast the language of Section 21 of the 2nd Schedule may be noted. That section empowers the court to pronounce judgment according to an award made on a reference out of court, and the opening words require the court to be satisfied that the matter has been referred to arbitration. There are no such words in Section 16. In their Lordships view, therefore, an appeal lay to the High Court in this case.

5. For these reasons their Lordships think that the decision of the High Court was right, and they will humbly advise His Majesty that this appeal be dismissed. The appellant must pay the costs of the respondents.