Judgment

RAGHUBAR DAYAL, J. : This is an appeal on certificate under Art. 133(1)(c) of the Constitution, granted by the High Court of Judicature at Bombay.

2. A suit for partition was filed against, defendants 1 to 10 and 12, members of a joint family. Defendant No. 1 was father of the appellant, who was then a minor, defendant No. 12. Defendant No. 11 was an outsider, he being a partner in the partnership shop of the family. Parties other than defendant No. 11 referred the matters in difference to an arbitrator. The arbitrator filed the award in Court on February 18, 1948. On February 21, 1948, the Civil Judge adjourned the matter for parties say to the arbitrator s report , to March 22, 1948. On March 16, 1948, an application was presented on behalf of defendant No. 1 praying that certain papers and documents be called for from the arbitrator. On March 22, 1948, an application was presented on behalf of defendant No. 1 pray-in for is days time for going through the papers and documents which he had asked the arbitrator to send to the Court and to intimate his say regarding the arbitrator s award. The Court granted the request. Defendant No. 1 filed his say about the arbitrator s report on April 2, 1948. He withdrew his contentions on March 11, 1949. It is to be noted that neither the objections filed on April 2, nor the other applications, purported to have been filed on behalf of defendant No. 12.

3. On February 17, 1948, defendant No. 1 filed an application stating therein :

"An arbitrator is to be appointed in the matter of the suit and the arbitrator is to submit an award. For the aforesaid reasons it is impossible for me to put forth properly necessary contentions etc., in the said matter. Consequently, the minor will be put to a heavy loss. In these circumstances, I have no desire to act as a guardian of the minor. Therefore, my appointment as a guardian of the mirror may be cancelled and further steps tray be taken after appointing a proper guardian of the minor. His mother Dhondavvabai may be appointed, guardian of the minor. I have put forth a contention against the arbitrator s award. I may be granted time for that purpose."

His resignation from guardianship was accepted on April 13, 1948, and Dhondavvabai, the mother of the minor defendant No. 12, was appointed guardian on June 16, 1948.

4. On September 5, 1948, a summons purporting to be for settlement of issues, was served on her. On September 7, 1948, she applied for, and was granted, one month s time for submitting the written statement with regard to the claim and the award in the said matter. On October 7, 1948, she applied for, and was granted, another one month s time for the same purpose. On November 9, 1948, she filed a written statement on behalf of defendant No. 12, with regard to the suit and the award, questioning the validity of the award and praying that it be declared null and void and that the suit be heard after taking into consideration the interest of the minor.

5. On August 24, 1949, the Civil Judge ordered that the award be filed, that a decree be drawn up in terms of the award and that the decree should further contain the terms as to the Bombay shop run in partnership with defendant No. 11 as was mentioned in the order. It was said in this order that none of the parties except defendant No. 1 put in any objections to the award, that defendant No. 1 filed his objections beyond the period of limitation and subsequently withdrew them and that the objections - filed by the guardian-ad-litem of defendant No. 12 on November 9, 1948, was also filed beyond the period of limitation.

6. Defendant No. 12 then went up in appeal to the High Court. The High Court dismissed the appeal holding that it was incompetent as the order of the Civil Judge did not amount to an order refusing to set aside an award, as there had been no objection before him for the setting aside of the award. It further held that the issue of a formal notice under sub-sec. (2) of S. 14