N.U.Beg, J. - (1.) THIS first appeal arises out of an application given under Section 14 of the Arbitration Act. It appears that on 23-9-1948, parties executed a deed of agreement by which they appointed Nawah Sajjad Alt Khan as arbitrator to decide the dispute between them regarding the moveable property left by Zohra Begam deceased, the mother of the parties. There was also a provision in this agreement that in case Nawab Sajjad Ali Khan refused to act as an arbitrator, Maulana Ibne Hasan should act as an arbitrator. Under the aforesaid agreement Nawab Sajjad Ali Khan entered on reference on 19-10-1948. He took the necessary proceedings as an arbitrator under the Arbitration Act. Some time in January 1949, however, Nawab Sajjad Ali Khan refused to act as an arbitrator. Under the terms of the agreement, therefore, Maulana Ibne Hasan, who was to act as an arbitrator in case of the refusal of Nawab Sajjad AH Khan, became the proper person to act as an arbitrator. Accordingly, Maulana Ibne Hasan, entered on reference on 19-1-1949. He delivered his award on 18-5-1949, i.e. within four months of his entering on reference to arbitration. On 2-6-1949. an application was given under the Arbitration Act for the filing of the award given by Maulana Ibne Hasan. On 23-8-1955, objections to this award were filed on behalf of the respondent. On 2-3-1956, after hearing the arguments of the parties the learned Civil Judge of Mohanlalganj rejected the application for the filing of the award on the ground that the award was given beyond time. Aggrieved with the said order, the appellant has filed this appeal in the High Court.
(2.) BEFORE the arguments started the learned Counsel for the respondent raised a preliminary objection to the hearing of the appeal. He argued that the present appeal is not maintainable under Section 39 of the Arbitration Act, Section 39 of the Arbitration Act provides for appeals against orders setting aside or refusing to set aside an award. Having heard learned Counsel for the respondent, we are of opinion that the order in the present case is an appealable one. It is admitted that an application under Section 14 of the Arbitration Act was given in the trial Court. It is further admitted that the award was filed in Court as a result of that application, and objections to the said award were invited. Thereafter the respondent filed objections and the Court adjudicated on those objections after going into the matter. The Court finally dismissed the application for filing the award. The order of the trial Court, therefore, amounts to an order setting aside the award and would, therefore, be appealable. Reference in this connection may be made to a decision of the Patna High Court in Jagdish Mahton v. Sundar Mahton, AIR 1949 Pat. 393.
(3.) ON merits also we are of opinion that there is force in this appeal. The view of the trial court that the award was given beyond time appears to us to be erroneous. In this connection reference might be made to Section 3 of the Arbitration Act, which provides that an arbitration agree-merit, unless a different intention is expressed therein, shall be deemed to include the provisions set out in the First Schedule in so far as they are applicable to the reference. Paragraph 3 of the First Schedule runs as follows : ''3. The arbitrators shall make their award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow." There being nothing contrary to the above provision in the agreement the said provision will apply to the present case. The award would, therefore, be within time if the arbitrator who entered on the reference has made the award within four months of the date of his entering on the reference. Maulana Ibne Hasan admittedly entered on the reference on 19-1-1949, and gave his award on 1.8-5" 1949, i.e. within four months of his entering on the reference. The award would, therefore, be clearly within the prescribed period of four months and cannot be thrown out on the ground that it was given beyond limitation.;