JUDGMENT
S. Parvatha Rao, J.
1. One Vurimi Veeraiah laid O.S.No. 70 of 1975 in the Court of the Subordinate Judge, Cuddapah against his two brothers (defendants 1 and 2) and his two sisters (defendants 3 and 4) for partition of plaint schedule properties and for rendition of accounts etc. Subsequently, the suit was transferred to Subordinate Judge’s Court at Proddatur and was renumbered as O.S.No. 89 of 1978 and then again to Subordinate Judge’s Court at Rajampet and was renumbered as O.S.No. 3 of 1984. The sisters i.e., defendants 3 and 4 remained ex parte. The brothers i.e., the plaintiff and defendants 1 and 2, filed a joint petition LA. No. 720 of 1979 for reference of the matter to three named arbitrators and the same was allowed and the matter was referred to them. One of the named arbitrators i.e., V. Satyanarayana, filed a memo before the learned Subordinate Judge on 25-12-1980 to the effect that the defendants were not co-operating with the arbitrators and that therefore he may be discharged as arbitrator. Thereafter, the remaining two named arbitrators filed an award on 20-7-1981 before the learned Subordinate Judge. Defendants 1 and 2 questioned the validity of the said award on the ground that it was not rendered by all the three named arbitrators, but only by two of them, and also on the ground that the arbitrators misconducted themselves, and sought the setting aside of the award in O.P.No. 37 of 1981 on the file of the learned Subordinate Judge at Proddatur when the suit was pending in that Court. After the suit was transferred to the learned Subordinate Judge’s Court at Rajampet, the said O.P. was also transferred to that Court and was re-numbered as O.P.No. 1 of 1984. The learned Subordinate Judge at Rajampet by his order dated 17-4-1986 rejected the objections raised by defendants 1 and 2 to the validity of the said award and partly allowed the O.P. modifying the award. Consequently, the learned Subordinate Judge by his judgment and decree dated 17-4-1986 decreed O.S.No. 3 of 1984 in terms of the award as modified.
2. C.M.A.N0.636 of 1986 is preferred by defendants 1 and 2 against the order of the learned Subordinate Judge in O.P.No. 1 of 1984 and A.S.N0.2349 of 1987 is preferred by defendants 1 and 2 questioning the judgment and decree of the learned Subordinate Judge in O.S.No. 3 of 1984. As the two matters are connected, they are heard together and they are being disposed of by this common judgment.
3. These two matters turn on the question whether the award rendered by two of the named arbitrators after the third named arbitrator withdrew from arbitration, is valid and can be enforced on the facts and circumstances obtaining. The undisputed factsare: (i) that after the learned Subordinate Judge at Proddatur referred the matter to the three arbitrators and they entered upon the reference, V. Satyanarayana filed a memo into Court on 25-12-1980 declining to continue as arbitrator and requesting the Court to discharge him as arbitrator; (ii) that the learned Subordinate Judge did not make any order thereon even as regards the filling up of the vacancy; (iii) that none of the parties to the suit took any steps for filling up of that vacancy; and (iv) that the award that was filed into Court on 20-7-1981 was signed only by the two remaining arbitrators. Defendants 1 and 2 contend that they had no notice of the said memo filed by V. Satyanarayana withdrawing from the arbitration and that they did not participate in the award proceedings as the plaintiff absented himself on various grounds after the matter was referred to the three named arbitrators. Though the learned Subordinate Judge, Rajampet observed in his order in the O.P. dated 17-4-1986 that defendants 1 and 2 did not take any specific objection that the award was void as one of the named arbitrators did not participate, this observation is not borne out by the petition in the O.P. because in paragraph 6 they submit that the award by the two remaining arbitrators “is most unjust and unsustainable both in law and on the facts of the case”. They also categorically state in paragraph 7 of the petition that they agreed for (he reference to arbitration only because they expected that the arbitrator (who walked out of the arbitration) to be present and play an eminent role in deciding the matter – they also state’ that he did not send any intimation or notice to them and he never gave any inkling that he would drop out. They also raise a specific objection to the award on the ground that the remaining two arbitrators in the event misconducted themselves in proceeding with the arbitration and that the award was liable to be set aside on that ground alone. They also contend that the remaining two arbitrators did not send any notice to them and did not make any enquiry at all.
4. We may also observe that there is no reliable evidence on record to establish that defendants 1 and 2 participated in the arbitration proceedings after the third arbitrator declined to continue as arbitrator by filing a memo on 25-12-1980. The 1st defendant in his oral evidence as P.W.1 supported what he had stated in his petition for setting aside the award. He stated that he agreed for the arbitration on the basis that all the three arbitrators including V. Satyanarayana would act as arbitrators and that he was not informed about the withdrawal of V. Satyanarayana. He also states that he agreed for arbitration because he reposed trust in V. Satyanarayana believing him to be a disinterested person. He also states in his evidence that the remaining two arbitrators colluded with the plaintiff and prepared the award in an arbitrary manner without notice to him. He also states that he was not aware that a memo was filed by V. Satyanarayana requesting that he might be dropped. The plaintiff did not come forward to give his evidence in the O.P. One of the arbitrators who had given the award was examined as R.W.1. He admits that V. Satyanarayana stopped away and withdrew as arbitrator and that after he and the other arbitrator made enquiry by themselves and gave their award. In his examination-in-chief, he states that the 1st defendant regularly attended all sittings and that the 2nd defendant attended two sittings. But in his cross-examination, he was not able to give any dates of the sittings. He admitted that no record of the sittings was maintained and that no notice in writing was given to defendants 1 and 2 requiring them to attend. His evidence does not inspire any confidence because he earlier stated that defendants 1 and 2 were not co-operating and did not attend any sittings in spite of notice to them and that was the reason why V. Satyanarayana declined to continue as an arbitrator: it is most improbable that after V. Satyanarayana left, they started participating in the arbitration. A reading of the award shows neither that they did conduct any sittings nor that defendants 1 and 2 participated in any of the sittings, and that only one arbitrator i.e., R.W.1 by himself prepared the award and took the signature of the other arbitrator. Therefore, we have to hold that the learned Subordinate Judge is not justified and is in error in holding that defendants 1 and 2 participated in the award enquiry and that they were estopped by conduct to say that the award was bad as it was given by two arbitrators. On the other hand, we find that there is no reliable evidence on record to hold that defendants 1 and 2 participated in the enquiry or that they acquiesced in the continuance of the arbitration by the remaining two arbitrators. In the absence of any clear, cogent and reliable evidence, it is not safe to hold that they participated or acquiesced in the award proceedings by the two remaining arbitrators.
5. The question then is whether the award by two out of three named arbitrators is valid and can be acted upon. The learned counsel for the appellants, i.e., defendants 1 and2, Mr. Y. Siva Rama Sastry, contends that when the disputes in the suit were referred to three named arbitrators on the basis of an agreement arrived at between the parties to the suit in that regard, all the three arbitrators should participate from beginning to end and give an award; and if all of them do not participate and conduct the proceedings and only two or one of them give the award, it cannot bind the parties because such an award would be contrary to the agreement and intention of the parties. He also relies on Section 25 of the Arbitration Act, 1940 (‘the Act’ for short) and submits that when one of the agreed arbitrators filed a memo stating that he was unwilling to continue as an arbitrator, the Court has only two options-filling up of the vacancy or superseding the arbitration and proceeding with the suit He relies on the decision of a Division Bench of Rajasthan High Court in Kanhyalal v. Ramkumar, , on the decision of a Division Bench of Madhya Pradesh in Maganlal Gangamm v. Ramji Bondarji, , and on the decision of a Division Bench of Karnataka High Court in Draupadibai v. Narayani, AIR 1985 Karn. 258. Mr. E. Monohar appearing for the respondents contends that the appellants /defendants 1 and 2 themselves were responsible for V. Satyanarayana filing a memo dated 25-12-1980 for withdrawing from the arbiratrion and did not take any steps for filling up of the vacancy and did not object to the arbitration by the remaining two arbitrators and that having acquiesced in the continuance of the arbitration by the remaining two arbitrators, they cannot be permitted to turn around and question the award having kept quite so long. He relies on the decision of a Division Bench of the Allahabad High Court in Amarnath v. Uggar Sen, AIR 1949 All. 399 and on the decision of a Division Bench of the Calcutta High Court in Ramanath Mishra v. Ramranjan, AIR 1922 Cal. 181 (1).
6. As long ago as in 1885, a similar question arose before a Division Bench of the Allahabad High Court in Nandram v. Fakir Chand, ILR 7 Allahabad 523. In that case also the disputes that arose in the suit were referred to arbitration of three named persons and the parties to the reference agreed to be bound as to the matters in dispute by the decision of a majority of the arbitrators, and one of the arbitrators subsequently refused to act and withdrew from the arbitration. Oldfield, J. held that when one of the arbitrators refused to act, the only course open to the Court was, Under Section 510 (of the Civil Procedure Code, 1873) to appoint a new arbitrator, or supersede the arbitration, and proceed with the suit and that the Court could not pass a decree on the award of the remaining arbitrators. Mahmood, J. agreed with him and held that the presence of all the arbitrators at all meetings, and above all at the last meeting when the final act of the arbitration was done, was essential to the validity of the award. The learned Judge further observed as follows:
“What the parties to a reference to arbitration intended is that the persons to whom the reference is made should meet and discuss together all the matters referred, and that the award should be the result of their united deliberations. This conference and deliberation in the presence of all the arbitrators is the very essence of the arbitration, and the sole reason why the award is made binding……Whatever may have been the arbitrator’s motive for withdrawing, his non-participation in the deliberations of the others makes their award ultra vires and of no effect.”
This was followed by a learned single Judge of the Madras High Court in Thammiraju v. Bapiraju, ILR 1889 (12) Madras 113. In that case also at the request of the parties the disputes in that suit were referred for decision to three arbitrators. Objection was taken to the award on the ground that one of the arbitrators was absent during the examination of witnesses. That objection was overruled by the trial Court holding that the presence of the three arbitrators at a majority of the meetings and at the final meeting when the award was drawn up was sufficient to validate the award. The question that came up for determination before the High Court was whether the absence of one of the three arbitrators at some of the meetings held amounted to misconduct. It was held in that case by Wilkinson, J. that it was certainly “the duty of each and every one of the arbitrators to be present at all meetings, more especially during the examination of the witnesses”. In support, the following passage from Russell, on the power and duty of arbitrators, was relied upon:
“as joint arbitrators must all act, so they must all act together. They must each be present at every meeting, and the witnesses and the parties must be examined in the presence of them all, for the parties are entitled to have recourse to the arguments, experience and judgment of each arbitrator at every stage of the proceedings brought to bear on the minds of his fellow judges, so that by conference they shall mutually assist each other in arriving together at a just decision.”
Referring to Section 510 of the Code of Civil Procedure then in force, the learned Judge held that the same could be gathered from that provision “for it is provided that if any one of the arbitrators dies or refuses to act, the Court may either appoint a new arbitrator or supersede the arbitration; in other words the remaining arbitrators cannot act alone”. The learned Judge further held as follows:
“One of the arbitrators having been guilty of misconduct in absenting himself from the meetings, and the other two arbitrators having been guilty of misconduct in examining witnesses in the absence of the third arbitrator, the award should, on the application of the defendants, have been set aside.”
This was also the view of a Division Bench of the Madras High Court in Kuppuswami Chetty v. Anantharamier, AIR 1948 Madras 40. That was a case of arbitration without the intervention of Court under an arbitration agreement in writing between the parties to the disputes whereunder they agreed to refer the disputes for arbitration of three named arbitrators. After reference and in the mid-way one of them withdrew and the remaining two arbitrators completed and gave an award. On those facts Gentle, C.J. (Rajamannar, J. agreeing) held as follows:
“The subject matter of the arbitration did not receive the united attention of all the arbitrators. Whilst the agreement provides that the decision of the majority of the arbitrators shall prevail, nevertheless, the law requires, and it is well established, that all the arbitrators must give their united consideration to all matters arising in the arbitration which has been referred to them…….in my opinion, since the document of 15th May 1945 was a decision which it purports to be arrived at after a consideration of the whole matter by two and not by all the arbitrators to whom the matters in dispute had been referred, even if that document otherwise might have been an award, since the three arbitrators did not together consider the matters in arbitration throughout, the award by two of them is not one which can stand, in spite of the provision in the arbitration agreement in this case that the majority view should prevail.”
A similar view was expressed by a Division Bench of the Calcutta High Court in Benode Lal Pakrasi v. Pran Chandra Pakrasi, 1911 (14) Calcutta Law Journal 143. More recently in Maganlal Gangaram’s case (2 supra) a Division Bench of the Madhya Pradesh High Court, after discussing the various decisions including Nandram’s (6 supra), held as follows:
“It is thus clear on these authorities that even where either the agreement of reference expressly provides or it following by implication by reason of Section 10 Sub-sections (2) and (3) that the award of majority is binding it is all the same incumbent upon all the arbitrators to participate in the arbitration proceedings particularly where the reference is to named arbitrators and not to a fluctuating corporate body which is governed by its own rules under which it is constituted.
Absence from and indifference to the proceedings by any one of the arbitrators has the effect of rendering the award invalid. It is essential that all the arbitrators must be present at each meeting of the arbitrators and must hear the parties and other evidence produced together. They must further all be present at final deliberation though all may not agree as to the final conclusion. It is only when they act together throughout the proceedings that the award of the majority would be a valid one.”
It is therefore well established that when one or more arbitrators out of two or more named arbitrators to whom the dispute has been referred for arbitration withdraw from the arbitration, the award by the remaining arbitrators is invalid and cannot be given effect.
7. Mr. E. Manohar relies on the decision of a Division Bench of Allahabad High Court in Amar Nath v. Uggar Sen (4 supra). This is a case where it was found that all the arbitrators took part in the arbitration proceedings and feat at the stage of making of the award one of the parties to the reference gathered an impression that the award might go against him and induced his nominee not to take part in the preparation of the award and to refuse to sign the award made by the majority on the arbitrators. On those facts the Allahabad High Court held that”… an interested party in such circumstances cannot be allowed to get over the reference in this manner. Tulsi Ram and his party having failed to get the agreement revoked in the manner provided by law, they resorted to this dodge and it could not be permitted”. This case has no relevance to the facts of the present case :it was not a case where one of the named arbitrators declined to continue as an arbitrator and thereafter did not participate in the proceedings. On the other hand, the Division Bench of the Allahabad High Court referred to Nandram’s case (6 supra) and observed that the view expressed by Mahmood, J. in that case was followed by the Madras High Court in Thammiraju’s case (7 supra) and the Nagapur High Court in Ramdhar v. Santadhar, AIR 1938 Nagpur 492, and that a similar view was taken by the Madras High Court in Ayyaswami Mudaliar v. Appandai Nynar (Not clear) and the Rangoon High Court in Laljee Jaising v. S.P. Tewari, (Not clear), and further observed as follows:
“In all these cases one of the arbitrators had either not taken part in the arbitration proceedings or not signed the award, and it was held that the award made by other arbitrators was invalid and no decree could be passed in terms of such an award. These rulings laid down the broad proposition of law based upon the general principle that all the arbitrators to whom a matter has been referred for decision must take part in the deliberations and sign the award made by them.”
8. Mr. E. Manohar then relies on the decision of a Division Bench of the Calcutta High Court in Ramnath Misra (5 supra). It was found in that case that one of the five arbitrators was present on one day for a short time, but did not hear the evidence or take part in the deliberations of the arbitrators and that the parties did not object to the arbitrators proceeding on the ground mat one of the arbitrators was absent from the arbitration proceedings and that therefore waiver of the objection could be inferred. On those facts found, it was held in that case:
“No doubt the arbitrators must be present during the whole of the deliberations, but it is open to the parties to waive the absence of one of them.”
To the same effect is the judgment of a learned single Judge of the Madras High Court in Lakshmamma v. Appadu, AIR 1932 Madras 157 relying on the decision of the Privy Council in Chowdri Murtaya Hussain v. Bibi Beehunnissa, (1875) 3I.A 209. However, we are not concerned in the present case as to what the position would be when after one or more arbitrators withdraw, all the parties to the dispute participate in the arbitration proceedings conducted by the remaining arbitrators without objecting to the same and thereafter an award is made by the remaining arbitrators; because we have already held that, on the facts of the present case, appellants/defendants 1 and 2 did not participate in the arbitration proceedings held by the remaining two arbitrators and the facts do not establish that they had acquiesced in the arbitration by the remaining two arbitrators or waived their objection to the arbitration by the two remaining arbitrators.
9. We also do not find any merit in the contention advanced by Mr. E. Manohar that the appellants/defendants 1 and 2 did not make any application for filling up of vacancy created by the withdrawal of V. Satyanarayana from the arbitration. The facts do not disclose that any notice was given to them of the memo dt. 25-12-1980 filed by V. Satyanarayana before the learned Subordiante Judge. There is nothing to show that they were made aware of the said memo or that applications for extension of time were preferred by any of the arbitrators after due notice to the appellants/defendants 1 and 2.
10. On the other hand, on a reading of Section 25 of the Act, we are of the view that it was incumbent on the learned Subordinate Judge to have acted one way or the other as contemplated by the proviso to that Section. Section 25 occurs in Chapter 4 of the Act under the heading ‘Arbitration in Suits’. The first section in mat Chapter is Section 21 and it provides that where in any suit all the parties interested agree that any matter in difference between them in the suit shall be referred to arbitration, they may at any time before judgment is pronounced apply in writing to the Court for an order of reference. Section 25 is as follows;
“25. Provisions applicable to arbitration under this Chapter:- The provisions of the other Chapters shall, so far as they can be made applicable, apply to arbitrations under this Chapter:
Provided that the Court may, in any of the circumstances mentioned in Sections 8,10,11 and 12, instead of filling up the vacancies or making the appointments, make an order superseding the arbitration and proceed with the suit, and where the Court makes an order superseding the arbitration Under Section 19, it shall proceed with the suit.”
The proviso clearly indicates two alternatives available to the Court when a vacancy arises – either the vacancy can be filled up by the Court or the Court can make an order superseding the arbitration and proceed with the suit. Filling up of the vacancy is as provided Under Section 8 of the Act, which reads as follows:
“8. Power of Court to appoint arbitrator or umpire:-
(1) In any of the following cases:
(a) where an arbitration agreement provides that the reference shall be to one or more arbitrators to be appointed by consent of the parties, and all the parties do not, after differences have arisen, concur in the appointment or appointments; or
(b) if any appointed arbitrator or umpire neglects or refuses to act, or is incapable of acting or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or the arbitrators, as the case may be, do not supply the vacancy; or
(c) where the parties or the arbitrators are required to appoint an umpire and do not appoint him;
any party may serve the other parties or the arbitrators, as the case may be, with a written notice to concur in the appointment or appointments or in supplying the vacancy
If the appointment is not made within fifteen clear days after service of the said notice, the Court may, on the application of the party who gave the notice and after giving the other parties an opportunity of being heard, appoint an arbitrator or arbitrators or umpire, as the case may be, who shall have like power to act in the reference and to make an award as if he or they had been appointed by consent of all parties.”
The scope of this provision has been recently considered by the Supreme Court in Harbans Singh Tuliand Sons, Builders Pvt. Ltd. v. Union of India, . The Supreme Court has held that Clause (a) of Sub-Section (1) of Section 8 will apply to a case of initial appointment of an arbitrator or arbitrators, and that the implication is that in the arbitration agreement the arbitrator or arbitrators must not have been named, and that where they are named this provision would have no application. As regards Clause (b) of Sub-section (1) of Section 8, the Supreme Court clarified as follows:
“This Sub-section covers such of those cases where the arbitration is pending. However, a vacancy has arisen in any one of the following contingencies:-
(i) Death
(ii) Incapacity
(iii) Refusal
(iv) Neglect to act.
It also requires to be noted that two other conditions are required to be satisfied before the vacancy is sought to be filled up-
(i) The arbitration agreement did not indicate the vacancy was not intended to be filled up.
(ii) The parties could not concur in the choice.”
In the present case it cannot be said that the parties indicated that the vacancy was intended to be filled up inasmuch as the agreement was only to refer the dispute to three particular named arbitrators in whom the parties had confidence.
11. This is further clarified by the Supreme Court in State of West Bengal v. National Builders, . There the Court was dealing with a case of arbitration without the intervention of the Court: it was under an agreement which provided for arbitration by sole arbitrator. The Court found mat that sole arbitrator refused to act. In that context, dealing with the scope and ambit of Clause (b) of Sub-section (1) of Section 8 of the Act, the Supreme Court held as follows:
“It, therefore, follows that in a case where the arbitration clause provides for appointment of a sole arbitrator and he had refused to act then the agreement clause stands exhausted. And it is for the Court to intervene and appoint another arbitrator Under Section 8(1 )(b), ‘if arbitration agreement does not show that it was intended that the vacancy shall not be supplied. That is the agreement should not debar any further arbitration. If it is provided in the agreement that if the arbitrator appointed in accordance with the agreement refuses to act then the dispute shall be resolved by another arbitrator, there is an end of the matter. But if the agreement does not show this then the next arbitrator can be appointed by the Court only. The expression used in the Sub-section is clear indication that the Court is precluded from exercising its power only if the parties intended that the vacancy should not be filled. In other words the Court shall exercise jurisdiction to appoint another arbitrator except where it is specifically debarred from doing so. The word ‘show’ used in the clause appear to be significant. It in fact furnishes key to the construction of the expression. Mere neglect or refusal to act alone is not sufficient to empower the Court to intervene. The agreement must not further show that the parties intended that the vacancy shall not be supplied. To put it affirmatively in absence of clear words or explicit language to the contrary the Court may appoint another arbitrator. The true effect of the word is that it extends jurisdiction of the Court to exercise power, if the agreement does not specifically debar it from doing so. To put it simply the Court’s power to interfere and appoint an arbitrator comes into operation if the arbitrator refuses to act and the agreement does not show that the parties did not intend that the vacancy shall not be supplied.”
National Builders (16 supra) is not a case of arbitration in a suit or of a mutually agreed named arbitrator refusing to arbitrate. Where such an arbitrator declines to arbitrate or withdraws, we find it difficult to conclude that the parties intend that the Court may supply the vacancy. It may be that even in such a case, if an application is made to the Court by any of the parties for filling up of the vacancy, the Court may fill up the vacancy. In the absence of such an application, we are of the view that it will not be open to the Court to fill up the vacancy on its own Under Section 25 of the Act.
12. In Kanhyalal’s case (1 supra) it was contended that where the parties have agreed to settle the matters by arbitrators in the trial Court and one of the arbitrators refused to act as an arbitrator, the trial Court should not have superseded the reference or proceeded to decide the case itself and that the Court should have itself appointed an arbitrator on the failure of one of them to act as such, relying on Section 8 of the Act. That contention was rejected by a Division Bench of the Rajasthan High Court. The Division Bench held that a perusal of Section 8 of the Act showed that it was up to a party where an appointed arbitrator refused to act to serve the other parties with a written notice to concur in the appointment or appointments or in supplying the vacancy, and if no appointment was made within fifteen clear days after the service of the said notice, the Court might, after hearing the parties/ itself appoint an arbitrator or arbitrators, and that in that case no such notice was given Under Section 8 of the Act by any of the parties. The Division Bench then held as follows:
“It must also be noted that S. 8 occurs in Chapter II which deal with arbitration without intervention of a Court, which was admittedly not the case here.
The procedure as to arbitration in suits is contained in Chapter IV ands. 25 thereof provides that the provisions of the other chapters shall, so far they can be made applicable, apply to arbitration under this Chapter.
There is, however, a proviso to this section, which clearly states that in any of the circumstances mentioned in S. 8 and certain other sections with which we are not concerned, the Court may, instead of filling up the vacancies or making the appointments, make an order superseding the arbitration and proceed with the suit.”
The Madhya Pradesh High Court agreed with this view in Maganlal Gangaram’s case (2 supra). That was also the view expressed by the Allahabad High Court in Nandram’s case (6 supra). These decisions support our view.
13. It is not necessary to further probe into this aspect of the matter in view of the undisputed position obtaining in the present case that none of the parties to the dispute approached the learned Subordinate Judge for filling up of the vacancy arising by virtue of the memo of Sri V. Satyanarayana. In the absence of any application for filling up of the vacancy , we are of the view that the learned Subordinate Judge ought to have superseded the arbitration and proceeded with the suit.
14. In the result, we are clearly of the view that the award in question made by only twoof the three named arbitrators without the participation of the third arbitrator is invalid and cannot be given effect and that the order of the learned Subordinate Judge in the O.P. cannot be sustained. C.MA.No. 636 of 1986 is therefore allowed and the order of the lower Court is set aside and O.P.No. 1 of 1984 is allowed. Consequently, A.S.N0. 2349 of 1987 is allowed. The judgment and decree in O.S. No. 3 of 1984 are set aside. The learned Subordinate Judge shall restore the suit to file. As the suit itself is of 1975, we are of the view that the arbitration agreement should be superseded and that the suit should be proceeded with and tried expeditiously and disposed of in accordance with law, preferably within six months from the date of receipt of this judgment. The learned Subordinate Judge is accordingly directed. No costs.
15. It is represented by the learned counsel for the appellants that pursuant to the order of this Court dated 9-9-1988 in C.M.P. Nos. 8107 of 1986 and 5831 of 1987 granting stay of the decree of the lower Court pending disposal of these two appeals subject to the condition of the appellants depositing Rs. 44.000/-, which amount was permitted to be withdrawn by the respondents without furnishing security, the appellants paid Rs. 44,000/- by way of demand draft and that they would be entitled for restitution of the said amount in view of the decree of the lower Court in the suit being set aside. As we have restored the suit and directed the learned Subordinate Judge to dispose of the same in accordance with law, we direct the learned Subordinate Judge to pass suitable orders in this regard while disposing of the suit finally.