MODI, J. - (1.) THIS is a defendants' second appeal. On 26th June, 1945, the plaintiff Gulab Bai filed a suit for partition in the court of Munsiff Khandu, District Banswara. While the trial was going on, the parties referred their dispute to arbitration and filed a reference in court on 16th May, 1947. The arbitrators, who were three in number, submitted their award on 28th Feb. , 1948. On that day, the court passed an order saying that the award had been received, and that the parties be informed to hear the judgment. The case then came up on 2nd May, 1948, when the plaintiff Gulab Bai was present, but the defendant-appellants were absent in spite of service. The court, therefore, proceeded to pronounce the judgment according to the award. From that jugdment and decree, the defendants preferred an appeal to the learned District Judge, Banswara, who dismissed it holding that no appeal was competent. THIS is a second appeal from that judgment.
(2.) A preliminary objection has been raised that no appeal lies against a decree which has been passed in accordance with an award under Schedule 2, paragraph 16 of the Code of Civil Procedure, which was the relevant provision of law in force and governed the filing of an appeal in the present case. The learned District Judge was of the view that there was divergence of judicial opinion upon the point and he ultimately held that no appeal lay according to para 16 of the Second Schedule except in so far as the decree was in excess of or not in accordance with the award. I propose to leave this question undecided as learned counsel for the appellants has urged that even if the decree of the trial court were held to be unappealable, his appeal may be treated as a revision, and decided on that footing. Having given my careful consideration to this question, I have reached the conclusion that the trial court in this case acted illegally or with material irregularity in the exercise of its jurisdiction and, therefore, I propose to decide this appeal as revision. The point for determination is whether the trial court was right in passing the decree on the 2nd May, 1948, when the defendants had been served with a notice of the award having been filed in the court on the 1st May, 1948. It is conceded by learned counsel for the respondents that the defendants were actually served on 1st May, 1948, and not earlier. Now if para 16 of the Second Schedule is read with Art. 158 of the Limitation Act, it seems to me to be point that it was the duty of the trial court to have passed a decree after 10 days' time was allowed to the defendants with effect from the date of service upon them of the filing of the award in court for filing their objections, if any, against the award. This the court obviously did not care to see. It is argued by learned counsel for the respondents that the defendants had undoubtedly been served on the 1st May, 1941, and, therefore, it was their duty to have presented themselves on 2nd May, 1948, when the case came up before the court, and to have prayed for time, and inasmuch as the defendants did not do so, they were not entitled to challenge the decree of the trial court. This Contention, in my opinion, has no force. Paragraph 16 of the Second Schedule clearly contemplates that the court shall proceed to pronounce judgment according to the award after the time for making any application arising objections against the award has expired. This time is prescribed to be a period of 10 days in accordance with the Law of Limitation which was then in force. It was not necessary, in my opinion, for any of the parties to have applied for time in order to obtain it. In this view of the matter, the decree passed by the trial court cannot be sustained and must be held to have been passed by it illegally or with material irregularity in the exercise of its jurisdiction. See Achaber Pande vs. Kuldip (1) (AIR 1925 Ran. , 103.) and Sheikh Esuf Rowther vs. Sheikh Davad Rowther (2) (AIR 1951 Mad. , 685. ). It is true that the latter case arose under sec. 17 of the Arbitration Act, 1940, but that section lays down precisely the same rule as paragraph 19 of the Second Schedule of the Code of Civil Procedure. It follows that this revision must be accepted, the judgment and decree of the trial court set aside, and the case remanded to the trial court with the direction that it will proceed to give the time prescribed by law to the parties for filing their objections against the award and the reafter dispose of the case a fresh according to law. The appellants will be entitled to receive their costs from the respondents in this Court. Costs in the trial court will abide the result but there will be no order as to costs in first appellate court in the circumstances of the case. .;