- (1.) R. K. Jain, J. These two writ petitions have been filed challenging common judg ment and order dated 18-1-1980 passed by respondent No. 1 in Civil Appeal No. 337 of 1978 with a prayer to quash the impugned judgment and order by issuing a writ in the nature of certiorari under Article 226 of the Constitution of India.
(2.) ONE Thakur Prasad (since deceased) filed suit No. 235 of 1974 against petitioner Moti Lal and respondents Nos. 10 to 13, Vijai Prasad, Gorakh Prasad, Har Prasad and Bharat Prasad, in writ petition No. 5403 of 1980. In pursuance to a joint application dated 29-7-74 under Section 21 of the Ar bitration Act 1940 by the plaintiff and the defendants in the said suit, the Court referred the dispute to the arbitration con sisting of Kishun Singh, Dharmdeo Singh, Garaj Narain Singh, Rishi Deo Singh, Dwarika Singh and Sarju Ram. The ar bitrators so appointed filed the award before the Court on 27-8-74. Separate ob jections under Section 33 of the Indian Ar bitration Act 1940 were filed by Motilal, defendant No. 1 (Annexure 4 to the affidavit in writ petition No. 5403 of 1980) and by defendants, Vijai Prasad, Gorakh Prasao, Har Prasad and Bharat Prasad (Annexure-3 to the affidavit in writ petition No. 3029 of 1980 ). The learned Munsif by a common order dated 30-10-1978 disposed of the ob jections by allowing the same and cancelling the award. Civil Appeal No. 337 of 1978 was preferred by heirs and legal representatives plaintiff Thakur Prasad (Respondents Nos. 3 to 9) in writ petition No. 5403 of 1980. The appellate court set aside the order of the learned Munsif and directed that the award be made rule of the Court. It is this judg ment and order which is being challenged by petitioner Moti Lal and petitioners Vijai Prasad, Gorakh Prasad, Har Prasad and Bharat Prasad in the two writ petition on common grounds. Hence, the two writ peti tion are being disposed of by a common judgment. Heard Sri Shambhu Nath Srivas-tava, learned Counsel for the petitioners. None appears for the respondents in writ petition No. 3029 of 1980 and writ petition No. 5403 of 1980 (heirs and legal repre sentatives of plaintiff Thakur Prasad)
(3.) IT is submitted by learned Counsel for the petitioners that the appeal against the order passed by the learned Munsif was not maintainable since the applications moved by the petitioners in both the petitioners were under Section 33 of the Indian Arbitration Act. IT is further submitted that on merit also the findings of the learned Munsif were correct and in accord ance with law and, therefore, the appellate Court committed error in setting aside the findings of the learned Munsif. Objections (Annexure 4 in writ peti tion No. 5403 of 1980) and Annexure 3 in writ petition No. 3029 of 1980) were filed under Section 33 of the Indian Arbitration Act. Section 33 of the Indian Arbitration Act provides that: "any party to an arbitration agreement or any person claiming under him desiring to chal lenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits. Provided. . . . . . . . ";