ABDUL REHMAN KHAN Vs. B BASANT RAI

JUDGEMENT

(1.) THIS is application in revision arising out of arbitration proceedings. The parties referred a suit to arbitration. There was an award. The defendants-applicants filed objections to the award and prayed that the award be set aside. The trial Court rejected the application, refused to set aside the award and then proceeded by the same order to pass a decree in terms of the award. Thus the orders refusing to set aside the award and directing that a decree be passed in terms of the award were passed as a composite order on one and the same date. The plaintiffs opposite parties filed an appeal to the lower appellate Court and the lower appellate Court set aside the award and remanded the case to the trial Court for decision according to law. An objection was taken before the lower appellate Court that the appeal was incompetent. That Court rejected the objection.

(2.) IN this revision application it has been urged that the appeal to the Court below was incompetent. Learned counsel has urged that as there was a composite order and as a decree in terms of the award was prepared under Section 17, Arbitration Act, an appeal to the Court below could only lie within the limits prescribed by Section 17, namely if the decree was in excess of or not otherwise in accordance with the award. This contention, has no force,

(3.) LEARNED counsel has referred us to certain decisions of this Court and of the Privy Council, e. g. , -- 'ghulam Khan v. Muhammad Hassan', 29 Ind App 51 (PC) (A); -- 'lutawan v. Lachya', air 1914 All 446 (FB) (B); -- 'mt. Mariam v. Mt. Amina', AIR 1937 All 65 (FB) (C) and -- 'suraj singh v. Phul Kumari', AIR 1926 All 202 (D ). But these cases were all decided before the enactment of the Arbitration Act, 1940. As already pointed out there was no provision in the Civil Procedure Code for an appeal against an order refusing to set aside an award and the cases cited by the learned counsel have, therefore, no bearing on the point we have to consider in the present revision application,