A decree passed on an award is not an ex parte decree within the meaning of Order 9, Rule 13, CPC.

Raj Kishore Prasad, J.

1. This is an appeal against an order dated 2-3-1950, of Mr. B. P. Pandey, Second Additional Subordinate Judge at Darbhanga, refusing an application made by the appellant under Order 9, Rule 13 and Sec.151, Civil P. C. for setting aside a decree passed on an award.

2. In order to appreciate the points, which have been placed before us, it is necessary to state a few facts. The appellant, who was a minor, was defendant 17, and his father, defendant 16, in a partition suit filed by the respondents against them and several others. Sri Jugal Kishore Choudhury, a pleader, was appointed guardian ad litem for the appellant in the court below. On 16-9-1941, Ramjatan Singh, the father of the appellant, made an application to the Court below, asking for the discharge of the Pleader guardian ad litem and for his own appointment in his place, and also for permission to join the reference to arbitration.

On that date another petition was also filed by the parties jointly for reference to the arbitration of the persons named therein. The petition for reference to arbitration was for some defects rejected, but the application for discharge of the guardian al litem remained pending as no order was passed on this petition. Thereafter, on 18-9-1941, all the parties filed a fresh petition praying to refer the case to arbitration of the persons named therein. The court on the same day referred the suit to arbitration. The arbitrators filed their award on 17-12-1941, and the award was confirmed on 2-1-1942. A notice of the filing of the award was given to all the parties concerned. In pursuance of the notice, Ramjatan Singh, the father of the appellant, on 5-1-1942, filed a petition under Sec.30 Arbitration Act, 1940 , making certain objections against the award, on 20-6-1942, the award was, however, set aside, because it had been confirmed within thirty days.

Thereafter, on 27-7-1942, Ramjatan Singh filed fresh objections to the award which were, however, rejected, but on appeal this Court directed that the petition 01 Ramjatan Singh filed on 5-1-1943, should be treated as an application under Sec.30, Arbitration Act. These objections, however, later on were rejected on 4-7-1946. Thereafter, the father of the appellant having failed in his attempt to get the award set aside, sat tight over the matter and then on 14-4-1949, the present application was made by the present appellant, through his mother as guardian, objecting to the award. This application purported to be under Order 9, Rule 13, as well as under Sec.151, Civil P. C. It was conceded in the Court below that Order 9, Rule 13, did not apply and, therefore, the application was pressed under Sec.151, Civil P. C. This application was, however, rejected by the Court below on 2-3-1950, and the present appeal has been preferred against this order,

3. A preliminary objection to the maintainability of the appeal has been taken by the learned Advocate-General, who appears for the respondents. His objection is that as the appellant conceded before the Court below that Order 9, Rule 13, did not apply to the case and pressed his application under Sec.151 Civil P. C. treating his application thereunder and as there is no appeal against an order passed under Sec.151, Civil P. C. therefore, the present appeal is not maintainable.

Mr. Sanyal, appearing for the appellant, has urged in reply to this preliminary objection two points: (1) that the application of the appellant filed on 14-4-1949, should be considered as an application under Sec.30, Arbitration Act, and, therefore, an appeal would lie against such an order under Sec.39 of the Act; (2) Alternatively, he has argued that if Sec.30, Arbitration Act, does not apply, then in that case his application should be treated as an application under Order 9, Rule 13, Civil P. C. and, therefore, an appeal would lie against such an order.

Mr. Sanyal has also argued on the merits of the case and his contentions on the merit are