JUDGMENT
N. Untwalia, J.
1. The appellant has filed this appeal against the order of the Court below recording a compromise in Title Appeal No. 229 o£ 1950, under Order 23, Rule 3, Code of Civil Procedure, as between the respondent first party who was appellant in the Court below, and the appellant before me who was the first respondent there. The appeal in the Court below, in view of the recording of this Compromise was dismissed as against the other respondents.
2. The appellant had filed a suit for partition. A preliminary decree was passed. A pleader Commissioner was appointed, and after hearing the objections of the parties, a final decree followed. This appeal, being Title Appeal No. 229 of 1950, was filed by Ram Prasad Jha against the final decree. He filed an application on 27-8-1951, asking the Court below to record an alleged compromise between him and Asharfi Lall Dass arrived at through the intervention of some of the well wis-hers of the parties. The learned Subordinate Judge has found that a compromise had been arrived all and, therefore, has ordered its recording accordingly.
3. The case of the first respondent is that Asharfi Lall Dass filed a criminal case against Sube-lal Jha, a relation of the former. He also filed an execution case executing the final decree. Since the parties were heading towards bad blood everyday, they were advised to refer all their disputes outside Courts to certain punches through whose intervention the parties arrived at the alleged compromise sometime in June 1951. In pursuance of that compromi.se, Asharfi Lall executed a Kebala in favour of Kamprasad Jha (exhibit la) on 22-6-1951, conveying certain properties of the partition suit to the latter. Ramprasad also, on the same date, executed a Kebala in (exhibit 1) in favour of Asharfi! Lall conveying certain other properties to him.
Both the Kebalas were executed without consideration i.e., one was the consideration for the other. On this date, a ladabi deed (exhibit 2) was also executed by Subelal Jha in favour of Asharfi
Lall disclaiming all interests in the properties which were the subject matter of dispute between Asharfi Lal and Subelal. Asharfilal agreed to withdraw and compromise the criminal case which be had filed against Subelal and, consequently, two petitions were drafted on 3-8-1951 (exhibits 3 and 3a) to be filed in the criminal case. All these documents were left with one Ramakant Jha who was one of the well wishers and a socalled punch to bring about the alleged compromise between the parties. These petitions (exhibits 3 and 3a) were, however, not filed in the Criminal Court because Asharfi Lall refused to file a compromise petition in the title appeal in question.
It is in this background that Ram Prasad came before the lower appellate Court for recording of the alleged compromise the terms of which were stated in his petition and were deposed to by him and his witnesses. The appellant opposed the recording of this Compromise alleging that there was no compromise between the parties, no punches, had been appointed and had not executed any kebala. He of course, did not deny having signed two petitions (exhibits 3 and 3a) to be filed in the criminal ease, but said that they were not filed because Ram Prasad wanted him to file a compromise petition in the title appeal to which he did not agree.
4. The learned Subordinate Judge has held that a compromise was actually arrived at between the parties through the intervention, of five rjersons, the so called punches, and as a result of the compromise Asharfilal executed the Kebala exhibit la on 22-6-1951, and Ram Prasad executed the Kebala exhibit 1 on the same date. The learned Subordinate Judge has further taken the view that even if St be held that the alleged compromise was really an award, yet it can be recorded under Order 23, Rule 3, Code of Civil Procedure, in view of the proviso to Section 47 of the Indian Arbitration Act, 1940.
5. In my opinion the decision of the learned Subordinate Judge on both these questions is wrong. I have gone through the oral evidence on the records of this case. I have also gone through the recitals in exhibits 1 and la, and the picture which clearly emerges from the oral evidence in cross examination of Ram Prasad Jha himself as also the recitals in exhibits 1 and la is this that the parties orally agreed (not in writing) to refer all their disputes in this title appeal and the disputes between Asharfilal and Subelal to the arbitration of the five punches, Ramakant Jha and others.
The Punches heard the parties, locked into their evidence, either oral and documentary and then announced their oral award the terms of which were as are said to be the terms of the alleged compromise. The parties, in pursuance of the alleged award, executed these two kebalas on 22-6-1951, and the other, documents relating to the dis-pute between Asharfilal and Subelal, but the matter did not take the form of a compromise between the parties in the sense that the parties agreed with their free consent to adopt the terms as a part of their agreement or compromise. The matter remained in the realm of a decision by the Punches, or of the so-called award.
The reason for taking this view is that in the two sale deeds it is clearly recited that the parties agreed to refer their disputes to the punches and they took the Ijhar of the parties, looked to their documentary evidence, heard the Ijhar of their witnesses & then announced their decision in the from of their award. The parties obeyed to the order and in pursuance to that they executed their respective Kebalas. The evidence of Ram Prasad Jha in cross examination is “The talk of compromise took place
in June 1951 in presence of our well wishers. The talk took place at the Kechari of Anirudh Babu in presence of Anirudh Babu, Jadu Babu and Ram Rai.
There was no talk there that pleaders should be consulted about how the compromise was to be effected. We did not select any punch. The punches themselves intervened as our well wishers. Then says, both the parties went to the punches together and requested them to compromise and settle the disputes between us. We agreed to abide by their suggestions but we did not give them anything in writing to that effect. They did not demand anything to that effect in writing. They were aware that litigations had been pending between us for 10 years. They did not suggest that the dispute should be referred to them by court, I do not remember if any date had been fixed by the punches for hearing other, parties or their witnesses, They did not record our statement. I do not know if they wrote out anything on hearing the state-ments of our respective cases. They examined our documents. They had gone to the spot and inspected the disputed land but did not prepare any map. We did not examine any witness. After hearing us they “expressed their decision. Their decision was embodied in the Kebala executed by both the parties. I know only how to sign my name. I am sufficiently literate.”
It is no doubt true that the evidence of some of the punches before the learned Subordinate Judge in the proceeding under Order 23. Rule 3, Code of Civil Procedure, was that they had brought about this compromise between the parties and in pursu-ance or this compromise the parties proceeded to execute the kebalas, but I am not prepared to accept this evidence in view of the evidence of Ram Prasad Jha himself, as just quoted and in view of the clear recitals in the two Kebalas exhi-bits 1 and la.
The learned advocate for the appellant could not seriously assail the finding of the learned Subordinate Judge that the kebala exhibit la had been executed by Asharifilal and on a perusal of the evidence in this case, I am satisfied that the finding is correct. By mere execution of the kebala (which of course was not registered) it cannot be held that Asharfi Lall agreed to the terms and entered into the alleged compromise to adjust his disputes with Ram Prasad in the title appeal. I, therefore, hold that there was no compromise between the parties as alleged there was an oral reference to Punches outside the Court and an oral award by them.
This takes me to the second question as to whether such an alleged award can be ordered to be recorded between the parties in view of the provisions of Section 47 of the Indian Arbitration Act. In my opinion, there are two difficulties in taking recourse to the proviso to Section 47. Firstly, it was not an arbitration award at all as there was no arbi-tration agreement in writing between the partial as required by the Arbitration Act, nor was there any written award by the punches. Therefore, it was not an “arbitration award” within the meaning of the proviso to Section 47 of the Act. The second difficulty is that according to the view of this court vide Zeeuddin v. Abdur Rafique AIR 1952 Pat 66 and Raghunandan Rai v. Sukhlal Rai, AIR 1952 Pat 258 the arbitration award otherwise obtained can be taken into consideration as a compromise or adjudgment of a suit between the parties, provided the parties consent to its being so treated and considered after the making of the award. If the parities do not consent, the award by itself cannot be ordered to be recorded as a compromise or adjustment of a suit between the parties. In my opinion,
therefore the order passed by the learned Subordinate Judge recording the compromise in the tide appeal, and consequently, dismissing the appeal o£ Ram Prasad Jha against the other respondents is bad and must be set aside.
6. I therefore, allow this appeal, set aside
the order recording the compromise and direct that
the title appeal (No. 229 of 1950) be restored to its
original file and be disposed of in accordance with
law.