( 406 )
Db Saxfayo
«. Bantam
Ram Chandra Krishna,1 bears more directly on the point. It wasthere held, in the same way as in the English case above cited,that where the Court was seized of a cause, its jurisdiction couldnot be ousted by the private and secret act of parties, and thatif they, after having invoked the authority of the Court and placedthemselves under its superintendence, desired to alter the tribunaland substitute a private arbitrator, they must proceed accordingto the law laid down in the first sixteen clauses of the second scheduleof the New Civil Procedure Code; that is to say, they must movein the same suit for an order of reference.
For these reasons I think that the application under section 696to file the award in Court was rightly rejected. That being 'so,it is unnecessary to consider the further question whether the decreeto be entered on the award would or would not be capable ofexecution. I may say, however, that in my judgment the DistrictCourt had no jurisdiction over the matter in a separate suit asdistinguished from the testamentary suit, which is still pending.Testamentary jurisdiction is a special and exclusive jurisdictionwith regard to the estate and effects of the deceased, and all mattersconnected with the administration and distribution thereof. Thisdoes not, however, imply that the award is wholly useless, and effectmay not be given to it in some other way. The award appearsto be binding on the parties as regards the method of distributionof the estate in the testamentary suit and other matters connectedtherewith, and although the award cannot be dealt with as suchunder the arbitration sections of the Code, it may, nevertheless,be treated under section 408 of the Code as an adjustment orcompromise arrived at by the parties. On this point I may referto Vyankatesh Mahadeo v. Ram Chandra Krishna (supra), Venkata-chala Reddi v. Rangiah Reddi (supra), and to Abir Paraniantk v.Jahan Mahmud Mandal.2 This is all the more so, because it appearsthe fourth and fifth petitioners have already performed some ofthe terms of the award. But for this purpose the appellants’ propercourse is to move in the testamentary suit, to which they musttherefore be referred.
In my opinion the present appeal Should be dismissed, with costs.
Loos A.J.—I entirely agree.
Appeal dismissed.
H1914) I. L. B. 38 Bom. 887.
*(1907) I. L. B. 34 Cal. 886.