In making an application under this section on affidavit, the affidavit should contain the facts and not merely follow the words of the Act-In the goods of Okilmoney Dossee, Fulton, 90; and should show special reasons for the appointment Gossain Dulmer vs. Lekait Het Narain 6 C. L. R., 467.

A Court should not appoint a Receiver under section 243, Act VIII of 1859 (305), where the application has beeen made simply to put off payment-Oottum Singh vs. Ram Surun Lall, 23 W. R., 287; nor to realize the profits of the property attached and pay off the debtors, when it would take 20 years Mohinee Mohun Dass vs. Ram Kant Chowdhry, 15 W. R., 322, or 15 years-Rednun Achutaramayya vs. Khaja Mahomed Aminkhan, 5 Mad., 272, or even one year to do so-Fyzoodeen vs. Giraudh Singh, 2 Alla., 1; though 6 months would not be considered unreasonableMohinee Mohun Dass vs. Ram Kant Chowdhry, 15 W. R., 322; and where a Judge on the death of a Receiver, finding that under the management the decree would not be satisfied for a long time, refused to appoint a new Receiver and ordered execution to issue, his order was upheld-Baboo Doorga Dutt Singh vs. Baboo Bunwaree Lall Sahoo, 25 W. R., 33; and the fact of a Receiver having been appointed to reali e the profits with a view to satisfy certain decrees, does not bar the Court on the application of another creditor from ordering a sale if the proceeds are insufficient to pay off the decretal amount in a reasonable period-Din Dyal Lall vs. Ram Rutton Neogee, 16 W. R. 46; see also Dinobundhoo Singh vs. Macnaghten, 2 C. L. R., 185. Where one entitled to a share of real estate applied for a Receiver of the entire joint property, and some of the co-sharers who resisted the appointment were not subject to the jurisdiction of the Court a Receiver was only granted for the share of the applicant-Chowdhry vs. Chowdhry, 2 Tay. and Bell, 192.

A Receiver should not be appointed for a portion of a railway—Latimer vs. Aylesbury Railway Company, 9 Ch. Div., 385.

The circumstance that a judgment-debtor has property other than that attached, is in itself no ground for refusing his application for the appointment of a Receiver, if he proposes to place all the properties under the management of the Court. The Judge should consider all the circumstances of the case-Debkumari Bibi vs. Ram Lall Mookerjee, 3 B.L.R., App., 107. Where the property to be managed is not the subject of the suit, no manager can be appointed before attachment-Bunwaree Lall Sahoo vs. Baboo Girdharee Singh, 16 W. R., 273; on the other hand, the appointing a manager does not release the property from attachment-Bunwari Lall Sahoo vs. Mohabeer Proshad Singh, L. R.. 1 Ind. App., 95; Mohabeer Pershad Singh vs. Collector of Tirhoot, 13 W. R., 423.

A Receiver may be appointed without the consent of the decree-holder-Thakoor Chunder, petitioner, Marsh., 261; even though the latter has a lien on the property as a collateral security, and he has taken a money decree stating that the property is liableMohunt Ram Rucha Doss vs. Doorga Dutt Misser, 13 W. R., 453; nor should he be dismissed ex parte at the decree-holder's request-Huree Sunker Mookerjee vs. Jogendro Coomar Mookerjee, 19 W. R., 66; but a party or his attorney should not, save in an extreme case be appointed Receiver without the consent of the other party-In re Lloyd, 12 Ch. Div., 447. His duties as officer of the Court are confined to realizing, preserving, and managing the property, for the collection of the moneys and money profits due to the debtor; if he does anything beyond this, he must be looked on, not as an officer of Court, but an agent for the judgment-debtor-Tiel & Co. vs. Abdool Hye, 19 W. R., 37. His powers at best are no more than those which the parties to the suit turn out to be possessed of when the case is finally decided; but if he takes possession of property under colour of his appointment, his conduct cannot be disputed by a motion to discharge or get rid of the attachment-Bissessuree Debia, petitioner, 15 W. R., 347. A Receiver appointed in execution can sue for any debts attached-Mussamut Rambutty Kooer vs. Kamessur Pershad, 22 W. R., 36, but see also Reazut Hossein Khan vs. Jaggunnath Singh, 21 W. R., 419; or the property of the judgment-debtor-Mirza Mahomed vs. The widow of Balmakund, L. R., 3 Ind. App., at p. 245.

Where the property under attachment could not be sold, and the Court directed the tenants to pay their rents to the judgment-creditor. Held, the latter must be looked upon as a receiver-Radha Kishore Bose vs. Afub Chundra, I. L. R., 7 Cal., 61. The appointment of a Receiver does not date from the order of appointment but from the date of giving the security required-Edwards vs. Edwards, 2 Ch. D., 291. He has no estate or interest in himself and is power to manage is created simply by the order of the Court appointing him and is binding only on the persons before the Court-Nilmadhab Kundul vs. Gillander, 2 Sev., 957; and his possession is the possession of all the partiesWrixon vs. Vise, 3. Dr. and War, 104; Parkisson vs. Lucas, 8 Beav., 627. A person not a party to an action is not entitled to apply by motion for payment of money to him by the Receiver-Brocklebank vs. East London Ry. Co., 12 Ch. Div., 839.

Appeal.-An appeal lies from an order passed under this section-Birajan Koer vs. Ram Churn, I. L. R., 7 Cal., 719, section 588, post; or when the application is refused-Gossain Dulmir vs. Tekait Hetnarain, 6 C. L. R., 467. Where one of the

defendants in a suit applied to have a receiver removed from his office on the ground of mismanagement and the application was refused, an appeal was allowed on the ground that the question was one arising in execution of decree-Methebhai vs. Limji, I. L. R., 5 Bom., 45.

When Collector may be appointed Receiver.

504. Where the property is land paying revenue to Government, or land of which the revenue has been assigned or redeemed, and the Court considers that the interests of those concerned will be promoted by the management of the Collector, the Court may appoint the Collector to be Receiver of such property.

This section applies to H. C.

Courts empowered under this chapter.

505. The powers conferred by this chapter shall be exercised only by High Courts and District Courts: provided that whenever the Judge of a Court subordinate to a District Court considers it expedient that a Receiver should be appointed in any suit before him, he shall nominate such person as he considers fit for such appointment, and submit such person's name, with the grounds for the nomination, to the District Court, and the District Court shall authorize such Judge to appoint the person so nominated, or pass such other order as it thinks fit.

An order made by a Subordinate Judge dismissing an application made under this section for the appointment of a receiver, after obtaining sanction from the judge, is an order under section 503 and not an order under this section-Gossain Dulwir Puri vs. Tekait Hetnarain, 6 C. L. R., 467.

The first thing the Subordinate Judge is to do is nominate for the receiveship the person he approves of and send the name to the District Judge; from this proceeding there is no appeal. The Judge then approves and authorizes the appointment and from this order there is no appeal. The Subordinate Judge then appoints the Receiver and from this order there is an appeal-Birajan Koer vs. Ram Chunder Mahta, 9 C. L. R., 203.

Such other order as he thinks fit., i. e., such other direction as he may think fit to give to the Subordinate Judge-Birajan Koer vs. Ram Chunder Mahta, 9 C. L. R., 203.

PART V.

OF SPECIAL PROCEEDINGS.

CHAPTER XXXVH.

J

REFERENCE TO ARBITRATION.

506. If all the parties to a suit desire that any matter

Parties to suit may apply for order of reference.

in difference between them in the suit be referred to arbitration, they may, at any

time before judgment is pronounced, apply, in person or by their respective pleaders specially authorized in writing in this behalf, to the Court for an order of reference.

Every such application shall be in writing and shall state the particular matter sought to be referred.

This section applies to H. C. and M. S. C. C.

All the parties.-All the parties to the suit who are interested must concur in making the reference-Bykunt Nath Chatterjee vs. Shaikh Nuzuroodeen, 10 W. R., 171; 1 B. L. R., S. N. xi.; and in the issue to be determined-Sheonath vs. Ramnath, 10 Moore, 427. It is not sufficient that they do not object-Deegumber Chatterjee vs. Mussamut Ram Prea Dabea, Marsh., 517. But though an award, which has not been made on a reference by all the parties, cannot be converted into a final decree in the manner laid down in this chapter, it is not null and void, but is evidence against the parties concerned-Beejoy Chunder Banerjee vs. Bhyrub Chunder Banerjee, 15 W. R., 427. In a suit in which A claimed a 6 annas share of certain property, all the defendants expect one referred the matter to arbitration, and the arbitrators found that the plaintiff's right extended over 44 beegahs more than had been awarded by the Court. It was held that the plaintiffs were entitled to their share in the 44 beegahs as against all the defendants except the defendant who refused to arbitrate-Doorga Churn Thakoor vs. Kally Doss Hazrah, 10 W. R., 463; see also Ram Soondur Mookerjee vs. Ram Shurun, 6 W. R., 25; and where a person was added as plaintiff while the case was pending before arbitrators, and he made no objection to the arbitration, but suffered the arbitrators to give their award, he was considered as having agreed to the arbitration ab initio and bound by it-Shitanath Biswas vs. Kishen Mohun Mookerjee, 5 W. R., 130. This decision has gone very far-See Sheonath vs. Ramnath, 5 W. R., P. C., 21. It has been held in England that by acting under an agreement to refer plaintiff was precluded from setting it aside as fraudulent-Ormes vs. Beadel, 6 Jur., N. S., 1103.

In writing.-The application must be made in writing. either by the parties in person or their pleaders specially authorized-Moonshee Gazee vs. Hameed Buksh, 16 W. R., 160; Gooro Chunder Puteetundo vs. Joogul Chunder, 1 W. R., 80; Bhrijoo Roy vs. Bhogruth Upadhya, W. R., 1864, Act X; and pleaders cannot consent to a reference on behalf of their clients, nor a plaintiff on behalf of his co-plaintiff, without special authority-Moonshee Gazee vs. Hameed Buksh, 16 W. R., 160; Gour Chunder Puteétundo vs. Joogul Chunder, 1 W. R., 80. Whether the exception to this rule, namely, where all the parties are present in Court, will still continue, is doubtful-Mirja Akber Beg vs. Bunda Ali, 2 Alla., 419; Jey Asankira Devi vs. Nagannada Devi, 1 Mad., 106; for every application must be in writing and must state the particular matter sought to be referred; and unless the terms of the section are complied with, jurisdiction does not arise-Nusseerwange Pestonjee vs. Meer Mynoodeen Khan, 6 Moore, 155 : Doolhun Miser vs. Shah Tassud Hossen, S. D., N. W., 1864, p. 215. See also Haines vs. East India Co., 6 Moore, at p. 485.

.

An agreement to refer to arbitration cannot be revoked, unless for good cause ; an arbitrary revocation is not permitted-Pestonjee Nussurwanjee vs. Manockjee, 12 Moore, 130; Mussamut Ablakee Kooer vs. Oodun Singh, 15 W. R., 331; Nagasaawmy Naik vs. Rungasamy Naik, 8 Mad., 46. But where, as under this section, the reference to arbitration is made by an order of Court, neither party can annul or revoke it-Nilmonee Bose vs. Mohima Chunder Dutt, 17 W. R., 516.

After a reference to arbitration with the consent of parties, a plea of limitation is inadmissible-Beharee Lall vs. Unoop Singh, S. D., N. W., 1864, p. 472.

Where parties in a suit for possession agree to arbitrate the question of title plaintiff relinquishing his prayer for pussession, the agreement contains an implied undertaking that the defendant shall give up possession if the decision be adverse to him-Raj Narain Roy vs. Modhoo Soodun Mookerjee, 20 W. R., 19.

This chapter does not apply to rent suits in Bengal-Moonshee Gazee vs. Hameed Buksh, 16 W. R., 160. But it has been held in the North-West that under the general law partics to suits may before issue and by the leave of the Court joined refer matters in dispute in a rent case to arbitration and after issue joined-Gosain Girdhariji vs. Durga Debi, 1. L. R., 2 Alla., 119.

An Appellate Court can act under this section-Chiranj Lal vs. Jamna Doss, 7 Alla., 243; Gangaralingain Petitioner, I. L. R., 3 Mad., 78; it cannot-Juggeshur Dey vs. Kritbartha Moyee Dossee, 21 W. R., 210.

A case having gone up on appeal, the Judge referred it to the first Court to call upon the parties to the suit to refer some of the issues to arbitration, or failing their doing so, the Court itself was to appoint arbitrators. Held, that the order was not one made without jurisdiction, but was an irregular proceeding which might be cured by the consent of the parties-Puna Bibee vs. Khoda Baksh Beparee, 22 W. R., 396.

This section and section 522, post, are enabling sections, and are not intended to be restrictive or exclusive. Parties sui juris are competent before decree to make any agreement as to the settlement of the suit-Jogessur Banerjee vs. Kulyanee Churn Deo, 24 W. R., 41.

507. The arbitrator shall be nominated by the parties. in such manner as may be agreed upon between them.

Nomination of arbitra

tor.

If the parties When Court to nominate

arbitrator.

cannot agree with respect to such nomination, or if the person whom they nominate refuses to accept the arbitration, and the the nomination shall be made by the Court, the Court shall nominate the arbitrator.

parties desire that

This section applies to H. C. and M. S. C. C.

The parties must either name the arbitrators or consent to their nomination by the Court-Sheonath vs. Ramnath, 10 Moore., 425. The Court should not nominate any person until it has ascertained whether he will accept office-Troyluckhonath Roy vs. Collector of Beerbhoom, W. R., 1864, p. 388. Where both parties could not agree in nominating an arbitrator, and the Judge nominated one under this section, and defendant six weeks afterwards objected that he did not nominate him, it was held that, looking at the evidence, the defendant must be considered to have desired that the Judge should nominate, and that the nomination was binding-Suroop Ram Deb vs. Gobind Ram Deb, 7 W. R., 13.

An arbitrator has full power to retract his resignation before it has been acceptedMaharajah Joy Mungul Singh vs. Mohun Ram Marware, 15 W. R., 38; 23 W. R., 429.

Order of reference

508. The Court shall, by order, refer to the arbitrator the matter in difference which he is required to determine, and shall fix such time as it thinks reasonable for the delivery of the award, and specify such time in the order.

When once a matter is referred to arbitration, the Court shall not deal with it in the same suit, except as hereinafter provided

This section applies to H. C. and M. S. C. C.

Such time. If no time is fixed in the order of Court, the award falls to the groundGunga Gobind Naek vs. Kalee Prosunno Naek, 10 W. R., 206; 1 B. L. R., S. N., xiii; In the matter of Joy Mungul Singh, 11 W. R., 433; Nusserwanjee Pestonjee vs. Meer Mynooddeen, 6 Moore, 134. Such is the doctrine in Calcutta ; but in Allahabad it does not avoid the award, and if the parties permit the reference to proceed without making any objection until the award has beeu delivered, such an objection will not be listened to-Mubarick Ali vs. Kadir Baksh, 7 Alla., 351. The first decision is more in consonance with the spirit of the present Act, which declares that awards are invalid, if not made within the period allowed by the Courts,-section 521, post.

By an order of Court, a suit was referred to two arbitrators, who were to make their award within three months. After the expiry of this period the defendant took part in the proceedings, but finally objected to any award being made. The arbitrators took no notice of the objection and finished the reference. It was held that the award was goodJuggat Soonderi Dasi vs. Sonaton Bysak, 5 B. L. R., 357. But there was a clause in section 318 of the Act (and on this the Court relied) declaring that no award should be set aside only by reason of its not having been completed within the period allowed by the Court. An award after the time allowed is now invalid-section 521. Where a suit was referred to arbitrators who were to make their award within six m nths, and nothing was done within that time: Held, on an application by the plaintiff to have the suit restored to the file of the Court, that the suit was still pending, the arbitrators not having determined it while they had jurisdiction to do so, and it was ordered that it should be brought again before the Court-Gapi Nath Nandi vs. Shib Chandra Nandi, 6 B. L. R., App., 74.

Matter in difference.-The order of reference should state all the points which are referred to arbitration. It is important that this should be done carefully, since once a case is referred to arbitation it must be dealt with in accordance with the provisions of this chapter, and it cannot be tried unless the reference fails-Hara

dhun Dutt vs. Radha Nath Shaha, 10 W. R., 398. Looking at the wording of the section, it is doubtful if a general reference is allowable. Under Act VIII, where the issues were not definitely laid down in a general reference of "all matters in difference in the suit," the arbitrators were held bound to ascertain the points at issue and come to a finding on them-Luchmee Narain vs. Pyle, 2 Alla., 150; and such a general reference gave the arbitrators exclusive jurisdiction to deal with the costs of the suit-Koylas Chunder Shaw vs. Muddoosoodun Chowdhry, 2 Ind. Jur., N. S., 12; and with the costs of reference and award, and interest after the date of submission-Mohonlall vs. Nathuram, 1 B. L. R., 144; and the Court could not amend the award-Barrut Chunder Doss vs. Damjee, Coryton, 150; but now it can as regards costs-section 519, post. Where matters in dispute are referred to arbitration, and it is found that one question at issue is omitted from the reference, and that the award contains no decision thereon, the party interested should bring the omission to the notice of the Court; if he does not do so, the Court is not wrong in not passing any order at all on the point-Ram Narain Roy vs. Juggessur Mookerjee, 14 W. R., 247.

When a dispute has been referred to arbitration, the Court cannot go into the merits of the case, or dispose of it otherwise than under this chapter-Haradhun Dutt vs. Radhnath Shaha, 10 W. R., 398. Nor will the Court confirm an order passed by the arbitrators making payment of their fees a audition precedent to hearing the reference-Steel vs. Robarts, I. L. R., 6 Cal,, 809.

The decision of arbitrators in a matter not in difference between the parties, and not referred to them, is null and void- Moshahel Singh vs. Konomutty Bewa, 15 W. R., 172. Where certain matters are referred to arbitrators by the Judge and other matters by the parties, care should be taken that they should be distinctly separated and not mixed up together-Roghoo Nundun Lall Sahoo vs. Bunwaree Lall Sahoo, 3 W. R., Mis., 27. Arbitrators cannot delegate their powers to others-Surubjeet Narain Singh vs. Gour Pershad Narain Singh, 7 W. R., 269.

The arbitrators should confine themselves to the matters referred, and only take such legal evidence as is necessary to decide that-Krishna Kanta Poramanick vs. Braju Sundari Dassi, 2 B. L. R. App., 25. Where an arbitrator imported into his proceeding a previous enquiry alleged to have been made by him and relied upon admissions made in former proceedings, his award was held bad-Kanhye Chund Gossamee vs. Ram Chunder Gossamee, 24 W. R., 81.

509. If the reference be to two or more arbitrators,

When reference is to two or more, order to provide for difference of opinion.

provision shall be made in the order for a difference of opinion among the arbitrators,

(a) by the appointment of an umpire, or

(b) by declaring that the decision shall be with the majority, if the major part of the arbitrators agree, or

(c) by empowering the arbitrators to appoint an umpire, or

(d) otherwise, as may be agreed between the parties; or, if they cannot agree, as the Court determines.

If an umpire is appointed, the Court shall fix such time as it thinks reasonable for the delivery of his award in case he is required to act.

This section applies to H. C, and M. S. C. C.

Difference of Opinion-When a suit is referred to arbitration, the order of reference should provide for the appointment can umpire in case of any difference of opinion among the arbitrators, and should declare that the decision shall be with the majority-Haradhun Dutt vs. Radhanath Shaha, 10 W. R., 398; if not, the award must be made and signed by all the arbitrators-Junglee Ram vs. Ram Heet Sakoy, 19 W. R., 47; Baboo Surubjeet Narain Singh vs. Baboo Gouree Pershad Narain Singh, 7 W. R., 269; Nem Roy vs. Bharut Roy, 22 W. R., 129. The mere absence of a clause in the order of reference to arbitration providing for a difference of opinion between the arbitrators cannot vitiate the award where there is no such difference of opinion-Gour Chunder Bhuttacharjee vs. Sodoy Chunder Nundee, 17 W. R., 90. A case cannot in special appeal be sent back to the arbitrators, with a provision for difference of opinion, where, the arbitrators having given