Desal, J. - (1.) THIS is an application by the plaintiffs whose application for the filing of an award has been dismissed by the Additional Civil and Sessions Judge of Banaras on appeal. It was alleged by the applicants that on 5th November 1943 an agreement was entered into by the parties for referring their disputes to arbitration, that accordingly the disputes were referred to arbitration, and that the arbitrators gave an award on 23rd January 1944. The applicants applied on 17th July 1944 for the filing of the award. The application was resisted by the defendants-opposite parties on the ground that there was no valid reference and that their signatures on the supposed reference were obtained fraudulently. The learned Munsif, in whose Court the application was filed, dismissed the objection of the opposite parties and passed a decree in terms of the award. The opposite parties filed an appeal from the decree in the Court of the learned Civil Judge who, holding that there was no valid agreement for reference, set aside the decree of the learned Munsif and dismissed the application.
(2.) THE only ground taken by the applicants before us is that no appeal lay in the Court of the learned Additional Civil and Sessions Judge against the decree passed by the learned Munsif. Under Section 17, Arbitration Act, a decree passed on the basis of an award is not appealable except on the ground that it was passed in excess of the award or was otherwise not in accordance with the award. THE appeal that was filed by the opposite parties was not on the ground that the decree was in excess of the award or not in accordance with it; it was only on the ground that the signatures on the agreement for reference were obtained fraudulently on blank sheets of paper. THErefore, the appeal did not lie Under Section 17 and it is to be seen whether it lay Under Section 39. Under this section, an appeal would lie from an order setting aside or refusing to set aside an award. THE opposite parties had applied to the learned Munsif that the application for the filing of the award should be rejected on the ground that there existed no valid agreement for reference and the learned Munsif refused to set aside the award. But he did not pass a separate or formal order refusing to set it aside. He wrote out a judgment disposing of the suit on the basis of the award, and a decree was prepared in accordance with it. It is the judgment that contains the fact of refusal to set aside the award and the grounds for the same. Though there was no separate order refusing to set aside the award, the opposite parties should have filed their appeal against the order and not against the decree that was passed in accordance with the judgment. THEy should have first got a formal order prepared by the learned Munsif and attached a copy of it to their memorandum of appeal. It has now been contended before us on their behalf that their appeal, though expressed to be an appeal from the decree, should be treated as an appeal Under Section 39 from the order of the learned Munsif refusing to set aside the award, contained in his judgment. There is no doubt about the intention of the opposite parties, which was to challenge the order of the learned Munsif refusing to set aside the award on the ground that it was improperly obtained on an agreement to refer which was not signed by the opposite parties with the requisite intention. They did not at all want to challenge the decree otherwise than by challening the award itself, The appeal itself was under, stood by all concerned as an appeal from the order refusing to set aside the award. The learned Additional Civil and Sessions Judge entertained the appeal and even allowed it on the assumption, that it was from the order and not from the decree. The applicants themselves understood it to be an appeal from the order and not from the decree and consequently did not plead before the learned Additional Civil and Sessions Judge that the appeal was not maintainable at all. We are sure they would not like us to think that they understood it to be an appeal from the decree and yet deliberately refrained from taking the plea before the learned Additional Civil and Sessions Judge and reserved it for a later date in second appeal when it would not be possible for the opposite parties to do anything. If they had pleaded before the learned Additional Civil and Sessions Judge that the appeal being from the decree was not maintainable, the opposite parties would have at once got the memorandum of appeal corrected by substituting the words "order refusing to set aside the award" in place of the word "decree." Such an amendment would have been allowed by the learned Additional Civil and Sessions Judge without any hesitation and the appeal would have been quite in order. Everybody laboured under the impression that the appeal was from the order because there was no separate order recorded by the learned Munsif refusing to set aside the award. Had there been such a separate order, and yet the opposite parties filed the appeal from the decree and not from that order their case would have been weak and it would have been difficult for us to treat their appeal as one from the order and not the decree. But, as the facts stand, we have no good reason for not treating the appeal as one from an order. We would do everything in our power to prevent a patty from being prejudiced by a mistake of the Court itself. The objection raised by the applicants is of a technical nature; we need not treat it as an objection going to the root of the jurisdiction of the learned Additional Civil and Sessions Judge. It is not that he had no jurisdiction to entertain any appeal at all. He had jurisdiction to entertain an appeal from the learned Munsfi's order refusing to set aside the award. The appeal, in substance, was such an appeal. The trouble is caused because it purported to be one from the decree passed on the award. The objection based simply on the language used in the memorandum of the appeal must necessarily be treated as a technical objection. As this objection has been raised at a late stage when it was not possible for the opposite parties to do anything to rectify their mistake, we would not attach as much importance to it as we would otherwise have done.
(3.) IT was vehemently argued before us that no appeal lay at all from the judgment of the learned Munsif because there was no application before him Under Section 33 of the Act for the setting aside of the award. The applicants applied Under Section 14 of the Act for the award being filed. On this the learned Munsif gave notice to the parties. The opposite parties filed a written statement denouncing the agreement to refer as fraudulent and null and void and the award, as unenforceable. The relief sought in the written statement was that the application be dismissed, Merely because it was not stated in the written statement that it was an objection Under Section 33 and the relief claimed was not that the award be set aside but that the application for its being filed be dismissed, it cannot be said that it was not an objection contemplated by Section 33 and that the judgment passed by the learned Munsif in the suit does not contain any order refusing to set aside the award. The law does not require any objection Under Section 33 to be filed in addition to the written statement in such a case. IT does not require any written statement to be filed at all. All that it requires is that a notice of the filing of the award should be given to the parties and it is for the parties to decide whether to challenge the award Under Section 33 or not. If they wish to challenge it, they can do so in any manner they like; Section 33 does not prescribe the manner in which the challenge should come. The written statement serves the purpose of the objection challenging the validity of the award. The learned Munsif disposed of the objection through the judgment and upheld the award. His judgment, therefore, clearly contains his refusal to set aside the award. If the learned Munsif did not pass a separate order contemplated by Section 39 refusing to set aside the award but embodied it in the judgment, that would not deprive the opposite parties of the right of preferring an appeal against the order. The mere facts that he passed IT decree on the basis of the judgment and that there can be no appeal from the decree also would not deprive them of the right of appeal.;