JUDGMENT
Maclean, C.J.
1. The original plaintiff in this suit was one Sreemutty Denomoney Dassee, a Hindu widow, and on the 16th September 1898, she brought an action against the defendant Chooney Money Dassee (the present appellant) alleging in effect that the defendant had wrongfully trespassed and encroached upon the plaintiff’s property, and asking for a declaration that the defendant had no right to do what she was doing, for an injunction, damages, and costs.
2. The plaintiff’s case was briefly as follows: Her husband died many years ago leaving herself and two sons, Hari Das and Bam Kinkur, surviving him, and leaving as part of his estate a certain house in Calcutta known as No. 6, Gobinda Chunder Sen’s Lane. This house was eventually partitioned, and on the 16th June 1900 one-third of the house in question was allotted to the plaintiff to be held and enjoyed by her as a Hindu mother during the term of her natural life. By divers conveyances and acts in the law the defendant ultimately became the owner of the whole house, subject to the above interest of the plaintiff in one-third of it. According to the plaintiff’s story the defendant then demolished a portion of the buildings allotted to the portion of the premises, allotted to the plaintiff for her life, and committed other acts of trespass, and hence the action. The defendant by her written statement denied the alleged encroachment and trespass. On or about the 22nd June 1899 the plaintiff presented a petition to the Court, and in paragraphs 4 and 5 stated as follows:
That it has been arranged between the parties, that this suit should be settled on the following terms, viz., that the defendant shall buy the plaintiff’s share and interest in the disputed property at a price to be settled by Babu Jodu Nath Sen of Sib Narain Dass’ Lane and Babu Bepin Behari Dhur of 98, Clive Street, Calcutta, as arbitrators, and in case of difference between them the question of the price is to be referred to the umpirage of R. Belchambers, Esquire, the Registrar of this Honourable Court, whose decision will be final and binding on both the parties.
3. “That on the payment by the defendant to the plaintiff’s attorney of the sum to be fixed by the said arbitrators or the umpire, as the case may be, the plaintiff will convey all her share and right in the said property to the defendant or as she may direct,” and the petitioner asked for an order referring to the arbitration of the arbitrators named “to settle the price of the plaintiff’s interest and share in the disputed property,” and for further relief consequential upon that price being so determined.
4. On the 22nd. Tune 1899 the order set out at page 7 of the Paper Book See ante, p. 100 was made, and this order, to my mind, has created the difficulty in the case. It provided for a reference to two persons named to “settle the price of the plaintiff’s share and interest in the disputed property,” with a proviso for reference, in the case of difference, to Mr. Belchambers, the Registrar of the Court as umpire, and ordered, that upon payment by the defendant to the plaintiff’s attorney of the price, so to be settled as aforesaid, by the said arbitrators or umpire, as the case may be, the plaintiff to convey all her share and interest in the said property to the defendant free from incumbrances, if any, created by her. This order, I understand, was made by consent and in chambers, and, apparently, without any discussion. It evidently purports to be made under Section 506 of the Code of Civil Procedure.
5. The matter then proceeded: the arbitrators differed as to the price; and Mr. Belchambers found the price to be Rs. 2,850, treating the plaintiff as entitled to an absolute interest in the property. This so-called award was dated the 4th September 1899, and the plaintiff died on the 13th of the same month, after having, as is alleged, offered to execute a conveyance to the defendant, and after demanding Rs. 2,850, as the purchase-money, determined by Mr. Belchambers. By an ex parte order dated the 18th September 1899, her sons, Hari Das and Earn Kinkur were upon their own petition placed upon the record in the seat of the deceased plaintiff, as her heirs and representatives. On the 16th November 1899 the defendant gave notice of motion to discharge the above ex parte order.
6. The application to discharge this ex parte order, as also, as I understand, an application for judgment on Mr. Belchambers’ award came before Mr. Justice Ameer All sitting on the Original Side, who refused to set aside the order of the 18th of September 1899, and gave judgment in terms of the award of Mr. Belchambers under Section 522 of the Code of Civil Procedure.
7. Hence the present appeal.
8. We have then to deal with two points:
(1) Whether the Judge in the Court below was right in refusing to discharge the order of the 18th September 1899, and
(2) If so, whether he was right in giving judgment in terms of the award under Section 522.
9. Upon the first question, whilst it is perfectly true that we are not dealing with the case of the heir to the property which has been injured seeking to carry on the action commenced by his predeeessor-in-title for damages for that injury, as, in the present case, Hari Das and Ram Kinkur have no interest in the property which belongs to the defendant, it is, I think, at least doubtful whether the principle of the oases of Oakey & Sons v. Dalton (1887) L.R. 35 Ch.D. 700 and Jones v. Simes (1890) L.R. 48 Ch.D. 607 rather than that of Phillips v. Homfray (1883) L.R. 24 Ch.D. 439 does nob apply. But be that as it may, the order of the 22nd June must be taken into consideration in dealing with this part of the case, and that order appears to me to make a substantial difference in arriving at our conclusion. That is still a subsisting order: it has not yet been discharged, and we are bound therefore to give some effect to it. It changed the position of the parties in the litigation. So far as one can judge, it was intended to be an order to give effect, in some shape or other, to the compromise at which the parties had arrived; it obviously contemplated the payment to the plaintiff of the purchase money awarded with a consequent conveyance by her. Assuming for the moment that Hari Das and Ram Kinkur as her representatives are, under this order, entitled to the purchase money awarded–a point upon which I express no opinion–can it be rightly said that the right to sue for it did not survive, or that they are not entitled to be placed in her shoes so that they may be able to receive it, and to enforce the order of the 22nd June? Was it intended that all the proceedings under this order were to determine on the death of the original plaintiff? I think not. The order of the 18th September is, perhaps, not very happily or carefully worded, but it must, I think, be regarded as an order enabling Hari Das and Ram Kinkur to proceed with the suit, as it then stood, that is, as modified or partially determined by the order of the 22nd June, in which view, having regard to the terms of that order, I think the Court below was right in its conclusion upon this part of the case. In short that order gave the plaintiff certain fresh right, or, at least possible rights in respect of which the right to sue survived to her representatives. On this point, then the appeal fails.
10. Upon the second point, I, unfortunately, am unable to agree with the learned Judge in the Court below. He has declared that the award ought to be carried into effect. What is there in the so-called award to carry into effect? Mr. Belchambers has only determined the amount of purchase money; he has done nothing else. The appellants say the amount has been determined upon a wrong principle, viz., upon the view of the mother having an absolute interest in the one-third share, when she had only the interest of a Hindu mother. I say nothing about that now.
11. The difficulty arises from the terms of the order of the 22nd June and from the circumstance that it appears to have been treated as if it were one under Section 506 of the Code. It may well be that it was intended, in making that order, to make one under Section 506; but obviously it cannot properly be regarded as one under that section, for what the so-called arbitrators and umpire were to decide was not any matter in difference between the parties in the suit but merely to settle the price of the plaintiff’s share and interest in the disputed property. They were, in effect, rather valuators than arbitrators; (see Carus Wilson v. Greene (1886) L.R.; 18 Q.B.D. 7 and if the reference were not property a reference under Section 506, it is reasonable clear that no order could properly be made under Section 522, the section under which the learned Judge purported to act. This seems to conclude the matter. I may add that this point, which has been carefully argued before us, does not appear, so far as one can judge from his judgment, to have been drawn to the attention of the Judge in the Court below. The appeal, then, succeeds on this point.
12. Then what is the proper course to be pursued? I think this order of the Court below must be discharged, and the case remanded to the lower Court with liberty to either party to apply to that Court as they may be advised. If the present respondents consider they are entitled to the purchase money as determined by Mr. Belchambers, it may be that they can make a proper application to the lower Court for an order directing payment to them; but I express no opinion as to whether they are so entitled, nor has that question been, as yet, determined by the Court of First Instance. If on the other hand, no step be taken by the respondents it will, probably, be open to the appellant to apply to the lower Court for an order determining the litigation for want of prosecution. But I do not see that we can properly no more, at the present juncture, than remand the case. As regards costs the victory has been divided, and there will be no costs of the appeal, the more so as the present appellant was a consenting party to the order of the 22nd June to which I attribute most of the difficulty which has arisen. As regards the costs of the hearing before Mr. Justice Ameer Ali each party will bear his own costs. We do not interfere with his order refusing to discharge the order of the 18th September.
Prinsep, J.
13. I am of the same opinion.
Hill, J.
14. I am also of the same opinion.
