Frederick William Gentle, C.J. - (1.)THE first appellant is the son of the second appellant. They are members of a joint Hindu family. The respondent is the widow of another son of the second appellant. In 1942, the respondent alleged that the first appellant and his mother had taken or had misappropriated her jewellery and she instituted criminal proceedings against them in the Bombay Magistrate's Court. She also had several claims against the members of her late husband's family. Subsequent to the institution of the proceedings in Bombay, the respondent and the two appellants agreed to refer the several claims by the former and also the matters in dispute relating to the jewellery, to arbitration. An agreement, dated April 28, 1943, in that behalf was made between the parties by which they appointed Rao Saheb Donthi Bheemayya Setti as sole arbitrator, and in the event of his not agreeing so to act, then the agreement should be taken as referring the matters in dispute to Mr. Katta Venkata Seshayya. The respondent thereupon withdrew her proceedings in the Bombay Court Each of the two named arbitrators refused to act. On June 16, 1943, the respondent's pleader, by notice in writing addressed to the appellants, stated that the named arbitrators were unwilling to act and called upon the appellants to concur with the respondent in the appointment of some one competent to decide the matters in dispute. It would seem that this notice was one given pursuant to Section 8(1) of the Indian Arbitration Act. On June 30, the appellants replied enquiring the dates when the arbitration agreement was sent to the named arbitrators and when they expressed their unwillingness to act and requesting all relevant correspondence to her forwarded, and upon receipt, it was stated, a reply would be sent. The appellants did not suggest the name of another arbitrator. On July 15, the respondent's advocate wrote two letters, one each to the named arbitrators requesting re -consideration of the matter and consent to act as arbitrator. Rao Saheb Bheemayya replied immediately declining to do so Mr. Venkata Seshayya neither acknowledged receipt of the letter nor replied to it; and it must be inferred he did not withdraw his refusal to act. On August 21, the respondent filed a fresh complaint in the Bombay Presidency Magistrate's Court against the first appellant and his mother which, it is convenient to record, was ultimately dismissed on September 7, 1945. On October 1, 1943, about five months after he had refused to act as arbitrator and about 21/2 months after he had received the respondent's advocate's letter of July 15, Mr. Venkata Seshayya sent a notice to the respondent headed : "Notice under Arbitration Act." It states that the inquiry into the matters in dispute between the respondent and the appellants, mentioned in the arbitration agreement executed by them on April 28, 1943, was posted to October 30, at his residence at 11 a.m. The respondent's advocate wrote to Mr. Venkata Seshayya on October 11 stating that in spite of her repeated requests Mr. Venkata Seshayya had declined to act as arbitrator, he had not even the courtesy to acknowledge receipt of the advocate's letter, dated July 15, and that his conduct convinced the respondent he had no intention to act as arbitrator and she had been compelled to revive her case in Bombay. The letter of October 11 adds that the respondent was satisfied that Mr. Venkata Seshayya had been approached by the other side and had consented to act as arbitrator under pressure from them after the accused in the Bombay case had been arrested ; in those circumstances, she was afraid she would not have impartial justice, and as Mr. Venkata Seshayya had already declined to act as arbitrator she had treated the reference as cancelled and as null and void and that he had no authority to act as arbitrator. Later, Mr. Venkata Seshayya notified the respondent of the adjournment of the proceedings to November 6, on which date he purported to hold the inquiry of the arbitration ; the respondent did not appear and participate in the proceedings; and on November 13, Mr. Venkata Seshayya made an award in favour of the appellants in respect of all matters in dispute set out in arbitration agreement.
(2.)THE award was filed in the Court of the Subordinate Judge of Anantapur who, in proceedings before him, held it had been improperly procured by the appellants and set it aside under Section 30(c) of the Arbitration Act. This is the appellant's appeal against the decision of the learned Subordinate Judge.
Section 8(1)(b) of the Arbitration Act provides that if any appointed arbitrator neglects or refuses to act, and the agreement does not show that it was intended that the vacancy should not be supplied, any party may serve the other party or the arbitrator, as the case may be, with a written notice to concur in the appointment or in supplying the vacancy, by Sub -section (2), if the appointment is not made within fifteen clear days after the service of notice under Clause (b), the Court may, on the application of the party who gave the notice, appoint an arbitrator in place of the one who had neglected or refused so to act. It is clear that the refusal by Mr. Venkata Seshayya as well as that of the other arbitrator, occasioned the respondent giving to the appellants the notice dated June 16. The appellants did not comply with the notice and the respondent did not make an application to the Court to appoint an arbitrator in place of, so far as material, Mr. Venkata Seshayya. But that omission, in my view, did not clothe Mr. Venkata Seshayya with authority to act, if otherwise he was incompetent to do so.

(3.)WHEN asked by the respondent, in the letter of July 15, to re -consider his refusal and to act as arbitrator, Mr. Venkata Seshayya did not even acknowledge the letter. The Explanation to Section 9 of the Arbitration Act provides that the fact that an arbitrator, after a request by either party to enter on and proceed with the reference, does not within one month comply with the request, may constitute a neglect or refusal to act within the meaning of Section 8. Assuming the. respondent's letter of July 15, addressed to Mr. Venkata Seshayya, was a request within the contemplation of the section, in the light of his earlier refusal and since he did not comply with the request contained in the letter within one month, his conduct must constitute further refusal to act.