P.N.Mookerjee, J. - (1.) THIS appeal is by the defendants and it arises out of a suit for money for recovery of a sum of Rs. 16,000/- due on a Hatchita. The suit was filed on 26-8-1948. It was originally contested on various grounds and a number of issues were framed on 17-3-1948. Eventually, however, on 24-8-1949, the parties agreed to refer their disputes to two named Arbitrators Sri Dibakar Konar and Sri Kamala Charan Goswami, both pleaders of the local Bar. The Arbitrators made their award on 25-2-1950, and the award was in favour of the plaintiff for a total sum of Rs. 14,000/- including costs.
(2.) PRIOR to this date, however, on 23-2-1950, the defendants had made a prayer before the Court for payment of their dues, if any, by certain instalments. They also filed simultaneously an application before the Court for giving directions to the Arbitrators to consider this question of instalment. On the next date, the plaintiff filed objections to the defendants' above prayer and the defendants also renewed their prayer for instalments before the Arbitrators. The Court on that occasion reserved orders on the defendants' prayer and the plaintiff's objections until receipt of the award. Thereafter, as we have already said, on 25-2-1950, the award was made by the Arbitrators in favour of the plaintiff for a total sum of Rs. 14,000/- including costs and, in that award, the Arbitrators expressly stated that they could not consider the defendants'-prayer for instalments, as it was, in their opinion, not within their terms of reference. On 8-3-1950, the defendants made a fresh application before the Court for instalments under Order 20, Rule 11, Civil P. C. and Section 151. The entire matter was eventually hoard by the Court on 30-3-1950 and, on April 4 following, the Court delivered judgment accepting the award and refusing the defendants' prayer for instalments upon the view that, as the matter had been referred to arbitration, the Court had no power to add to the award of the Arbitrators and grant instalments to the defendants. The decree followed upon this judgment and from this decree the present appeal way preferred by the defendants on 8-5-1950.
(3.) A preliminary objection was raised to the competency of the present appeal on behalf of the plaintiff respondent and the contention was that, as the decree in the present case was based on the award and was strictly in accordance or conformity with it and actually in terms of it, there was no appeal provided in law from that decree. Reliance for this purpose was placed upon Section 17, Indian Arbitration Act. Reference was also made to Sections 39 and 41 of the said Act.;