Scroope, J.This is an application u/s 115, Civil P.C., against the order of the Second Munsif of Buxar declining to act upon an award made by arbitrators in Civil Suit No. 28 of 1928 under a reference made to them under a registered ekrarnama without the intervention of a Court. There is a well known conflict of opinion as to whether an award made without the intervention of a Court in a pending suit can be treated as an adjustment of a suit by agreement within the meaning of Order 23, Rule Civil P. C.

2. On the one hand there are Pull Bench decisions of three High Courts, namely, Bombay, Madras and Allahabad, to the effect that where in a suit parties have referred their differences to arbitration without an order of the Court and an award is made, a decree in the terms of an award can be passed by the Court under Order 23, Rule 3, Civil P.C., and not otherwise: Chanbasappa v. Basalingayya AIR 1927 Bom. 565 , Subbaraju v. Venkatramaraju AIR 1928 Mad. 1025 and Gajendra Singh Vs. Durga Kumari . On the other hand, according to the decisions of the Calcutta High Court, if an award is made in such circumstances the Court should not take any notice of the award and the suit may be proceeded with on the application of either party: see for instance, Dekari Tea Co. Ltd. v. The India General Steam Navigation Co. AIR 1921 Cal. 238 and Guimoni Dasi Vs. Tarini Charan Porel, The same view seems to have bean taken in the Lahore High Court: vide Hari Prasad v. Soogni AIR 1921 Lah. 232. The question has been discussed at very great length in all of these decisions and it is practically impossible to say anything new on the subject except that the position urgently requires legislation. In this High Court we have no decision bearing directly on the point but in Kokil Singh v. Ramasray Pd. AIR 1924 Pat. 488 , Ross, J., observed as follows:

In all the cases cited there was a suit pending at the time the award was made and the question was how the award was to be dealt with in the suit. The better opinion seems to be that it can be dealt with as a bar to the further continuance of the suit.

3. That being the opinion so far expressed by this Court, on the principle of stare decisis I would follow it, supported as it is by the Full Bench decisions of the three High Courts referred to above, and would hold that the registered ekrarnama and the award constituted an adjustment of the suit by the parties themselves which should be given effect to under Order 23, Rule 3. It may be noted that the subject-matter of the suit in question was not the only matter referred to arbitration but a number of other matters foreign to the suit were also referred and this seems to me an additional reason for following the Full Bench decisions I have referred to; otherwise we get the position that part of the award is enforceable in Court and part of it is not.

4. Another reason for which the Munsif declined to take any action on the award was that the defendants did not challenge order No. 31, dated 24th February 1930, which was to the following effect: "Defendant does not appear. Heard plaintiffs pleader. It appears that the award was made by the arbitrators under a reference made to them by a registered ekrarnama; the award cannot be acted upon in this suit as the reference, if any, was without the intervention of the Court."

5. Now the facts are that the suit was instituted on 2nd March 1928, and was stayed on 13th June 1928, as it was a partition suit brought by an auction-purchaser in execution of a mortgage decree and an appeal was pending in the High Court as regards the extent of the interest so acquired by the plaintiff.

6. It was again taken up on 29th January 1929, but was stayed by the orders of the High Court. In the mean time, that is, on 10th February 1930, the award and the ekrarnama were put in by some persons unknown and, as I say, on the objection of the plaintiff the above order was passed on 24th February 1930. Though the plaintiff had been directed on 14th February to make over a copy of his objection to the award to the other side, it does not appear that it was ever done and it was not until 1st September 1930, that the defendants appeared and asked that the case be decided under Order 23, Rule 3. It was not then disputed that there had been a genuine award. It was incumbent on the plaintiff to show, having regard to the order of 14th February referred to above, that the defendants had notice that the award was being taken into consideration on 24th February 1930. But this has not been done, so I do not think any stress can be laid on the failure of the defendants to appeal against the order of 24th February 1930.

7. For these reasons I would set aside the order in question and direct that the award be disposed of under the terms of Order 23, Rule 3, Civil P.C., and the petitioners be entitled to their costs. Hearing fee two gold mohurs.

Macpherson, J.

8. I agree.