KRISHNA SARAN SHRIVASTAV J.

( 1 ) THIS revision is directed against the order passed by the Subordinate Judge, Kovvur, in O. P. 63/92, dated 28-7-1994, whereby the panel arbitrators have been directed to adjudicate the dispute afresh giving opportunity to both sides.

( 2 ) BRIEFLY stated, the facts which are no longer in dispute before me are that the respondent was entrusted with the work of execution of North Feeder Channel from K. M. 1. 60 to 5. 6 of Somasila Project by the Superintending Engineer, Somasila Project, Nellore and the agreement was executed vide agreement No. 9/se/77-78. There was a term in this agreement that in case of dispute, the matter could be referred to the arbitration of the Chief Engineer, P. W. D. (Randd), Deputy Secretary to the Government, Finance and Planning Department and the Director of Accounts, Sriramsagar Project. The respondent-Contractor, alleging that correct measurement was not done and he was entitled to claim more amount from the Superintending Engineer for the work done, referred the dispute to the panel of arbitrators mentioned above. The arbitrators passed their award on 3-6-1986 whereby the claim of the respondent-contractor was rejected on the ground that he had executed a receipt evidencing final payment of work done by him. On 7-7-1986, the respondent-contractor filed an application under Section 14 of the Arbitration Act of 1940 (in short the Act ) for issuance of a direction to the arbitrators to file the impugned Award in the court along with all the documents and records. This case was registered as O. P. 122/86. On the same day, the respondent-contractor filed another application under Section 30 of the Act alleging misconduct on the said arbitrators and had claimed the relief that the arbitration award dated 3-6-1986 should be set aside. This application was registered as O. P. 123/86. In both these petitions, the State of Andhra Pradesh only was made a party.

( 3 ) THE lower Court, in O. P. No. 122/86 passed the following order :"petitioner evidence not necessary. Petition allowed without costs. "the lower court passed the following order on the same day in O. P. No. 123/86 :"petitioner evidence not necessary. Allowed without costs. The petitioner can seek for new panel to decide his claim. "

( 4 ) THE State of Andhra Pradesh did not challenge the order passed in O. P. No. 122/86 in revision under Section 115 of the Code of Civil Procedure and similarly it did not file any appeal against the order passed in O. P. No. 123/86, under Section 39 of the Act.

( 5 ) ON 20-6-1989, the respondent-contractor filed an application under Section 20 of the Act and claimed the relief that the recored of the case should be sent to the original arbitrators for fresh adjudication of the claim on the ground that though the Award dated 3-6-1986 has been set aside, but it has not been superseded. This petition was registered as O. P. 63/1992. It was resisted by the State of Andhra Pradesh through its counter, inter alia, on the ground that the lower court had set aside the Award in O. P. 123/86 on 9-3-1989 without the Award being filed in the Court in pursuance of the order passing in O. P. No. 122/86, dated 9-3-1989 and, therefore, this order is nullity and, therefore, the court cannot send the record to the same arbitrators for adjudication afresh.

( 6 ) THE lower Court taking the view that sub-section (2) of Section 14 of the Act is not a mandatory provision and relying on the case of Ittyavira Matthai v. Varkey Varkey and another (AIR 1964 SC 907), reached there conclusion that the impugned order passed in O. P. 123/86, dated 9-3-1989 is not nullity and it has become final because it had not been challenged in appeal, allowed the application and directed that the same panel of arbitrators should adjudicate the dispute afresh giving opportunity to both sides to place evidence in support of their claims within three months from the date of the order.

( 7 ) FEELING aggrieved by the impugned

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