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Petition No. 212 of 1950, decided on 24th March 1952, for revision against the order and decree of M. E. Hayat Additional Judge, Peshawar, dated 11th July 1950.

Ss. 17, 39‑Court should record a distinct order either setting aside or refusing to set aside. an award before proceeding to pass decree in accordance with award.

The policy of the Arbitration Act is that after an award is filed in Court, and after complying with the provisions of law contained in different sections of the Arbitration Act, the Court should pass a distinct order, either setting aside the award, or refusing to set aside the award.

Until and unless such an order exists on the record no appeal lies from the order of the trial Court. By enacting section 39, the legislature clearly gave a right to the aggrieved party to go up in appeal against certain order, which the Court could not take away from him by omitting to pass such an order.

Where the trial Court had omitted to record a distinct order refusing to set aside an award, and proceeded to pass a decree in accordance with the award, the judgment and decree were set aside by High Court in Revision and the case remanded for pass ing orders strictly according to law.

Dr. Abdur Rehman and Abdul Latif for Petitioner.

Abdul Latif Khan for Respondent.

‑‑On the 14th of June 1949, Haji Ghulam Hassan Khan made an application in the Court of the Senior Sub‑Judge, Peshawar, to the effect that he and Sayed Hussain Shah had jointly taken certain contracts from the P. W. D., in which some dispute having arisen between them, the matter was referred to the arbitration of Muhammad Shafi and Muhammad Hasham, the two contractors of Peshawar Canton ment, and that the arbitrators had given their award, which might be ordered to be filed and a decree granted thereupon.

Sayed Hussain Shah resisted this application, and raised several objections to the award.

The learned Sub‑Judge 1st Class, Peshawar, to whom the case was sent by the learned Senior Sub‑Judge, overruled all the objections and granted Haji Ghulam Hassan Khan a decree for the recovery of Rs. 1,177‑4, on the basis of the award given by the said two arbitrators.

Sayed Hussain Shah went up on appeal against this order, which was dismissed by the learned Additional Judge Peshawar, on the ground that under the law no appeal lay.

Sayed Hussain Shah has now come up on revision to this Court.

In this case the reference to arbitration was made by the parties out of Court, by a deed written on the 27th of February, 1949. The arbitrators had given their award on the 31st of March 1949, holding Haji Ghulam Hassan Khan to be entitled to Rs. 1,177‑4. The learned trial Court, after dismissing the objections, raised by Sayed Hussain Shah, straight away granted a decree for the sum mentioned in the award in favour of Haji Ghulam Hassan Khan against Sayed Hussain Shah. It did not pass any distinct order refusing to set aside the award. It is this omission of the learned trial Court, which has led the learned lower appellate Court to hold that no appeal was competent.

After the reference to arbitration is made, and the arbitrators have made the award under section 14 of the Arbitration Act X of 1940, they have to sign it, and give notice in writing to the parties of the making and signing thereof. Subsequently at the request of any party to the arbitration agreement or any person claiming under such party or if so directed by the Court, the arbitrators have to cause the award or a signed copy of it, together with any depositions and documents which may have been taken and proved before them, to be filed in Court. The Court has thereupon to give notice to the parties of the filing of the award. Under section 15 of the Act, the Court under certain conditions can modify or correct the award. Under section 16, it can from time to time remit the award or any matter referred to arbitration to the arbitrators for reconsideration upon such terms as it thinks fit. The Court has got the power under section 30 of the Act, to set aside the award on any grounds mentioned in that section. When the Court sees no cause to remit the award or any of the matters referred to arbitra tion for reconsideration, or to set aside the award, it shall proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree has to follow. Under section 39 of the Act, an appeal is competent against an order setting aside or refusing to set aside an award, but under section 17 of the Act, no appeal is competent against a decree which follows the judgment pronounced according to the award, except on the ground that it is in excess of, or not otherwise in accordance with the award.

The policy of the Arbitration Act is that after an award is filed in Court, and after complying with the provisions of law contained in different sections of the Arbitration Act, the Court 14 should pass a distinct order, either to set aside the award, or refusing to set aside the award, That such a distinct order should be passed by the Court is clear from the wordings of section 17 read with section 39 of the Act, because until and unless such an order exists on the record no appeal lies from the order of the trial Court. By enacting section 39, the legislature clearly gave a right to the aggrieved party to go up on appeal against a certain order, which the Court could not take away from him by omitting to pass such an order. After writing a distinct order with regard to the setting aside, or refusing to set aside the award, the Court should then pass another order of pronouncing judgment accord ing to the award. The decree is the final stage of the arbitration proceedings, which can only be reached after the orders mentioned above have been passed in clear words. No right of appeal exists from the decree passed under the above circumstances by the pro visions of section 17 of the Arbitration Act. It is true that when a Court rejects the objection of a certain partly, and pronounces its decree, the order refusing to set aside the award and pronouncing judgment according to the award is implied therein, but then a Court of law should not leave anything obscure : it should be clear and precise in those orders, so that a party may not be dives ted of the right which the law extends to him in the case before us, the learned trial Court while granting a decree in accordance with the terms of the award, did neither pass an order refusing to set aside the award, nor did it, technically speaking, write down in the order before granting the decree that it proceeded to pronounce judgment according to the award. In this respect the order of the learned trial Court was not strict speaking in accordance with law.

We consequently accept this revision petition, set aside this judgments and decrees of the two Courts below, and remand the case back to the learned trial Court to proceed to pass the order strictly according to law. Costs will follow the event.

Pleader fee Rs. 30.

Orders announced.

A. H. Petition accepted.

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