A written statement filed by the defendants in an arbitration proceeding, which contains necessary materials and allegations challenging the existence of the arbitration agreement and the award, can be treated as an application for setting aside the award under Sec.33 of the Arbitration Act, 1940.

H.Mahapatra, J.

1. Plaintiff is the appellant. He initiated a proceeding under Sec.14 (2) of the Arbitration Act, 1940 , on the 14th March, 1959. In pursuance of an order passed by the Court, the award was filed on the 22nd April, 1959. The defendants-respondents appeared and filed a written statement on the 8th June, 1959, in which they had made several allegations against the plaintiff and the award. One of the contentions raised there was that there was no reference to arbitration and the two documents showing arbitration agreement had been fabricated by the plaintiff. Ultimately the court passed judgment on the 28th February, 1962 against the appellant holding that there had been no reference to arbitration and the two documents (Exs. 5 and 5/a) had not been executed for that purpose by the defendants.

There was an appeal against that by the present appellant in title appeal no. 63/15 of 1962/63 in which the judgment of the court below was set aside and the case was remanded for fresh disposal. This time the learned Munsif passed a judgment in favour of the appellant and drew up a decree in accordance with the award on the 26th February, 1966, Against that the defendants took an appeal in which they succeeded. That is why the present second appeal has been filed by the plaintiff.

2. Learned counsel appearing for the appellant first raised a point that the defendants appeal in the court below was not competent, inasmuch as, decree having been passed in accordance with the award, no appeal could be preferred against that as provided under Sec.17 of the Arbitration Act. Sec.17 states:

"Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration, or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of, or nut otherwise in accordance with, the award."

Clearly enough, the defendants appeal directed against the decree passed under Sec.17 of the Act was not maintainable as the decree followed the judgment which was according to the award and as there was no allegation by the defendants in the court below that the decree was in excess of, or not otherwise in accordance with, the award. But in the present case that will not end the controversy.

3. Sec.14 of the Act provides that "the arbitrators or umpire shall, at the request of any party to the arbitration agreement ..... or if so directed by the Court ..... cause the award or a signed copy of it together with any depositions and documents ..... to be filed in Court, and the Court shall thereupon give notice to the parties of the filing of the award." In the present case on an application made by the appellant the court directed the arbitrators to file the award and when, the award was filed notice was issued to the defendants. At that stage it was open to the defendants to apply to the court challenging the existence or validity of the arbitration agreement or the award and to have the effect of either or both of them to be determined by the court. Sec.33 of the Act provides for that. In Sec.17 we find that the court before whom a proceeding under Sec.14 is brought has to allow time for making an application to set aside the award after it decides not to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award suo motu. This indicates that a party who wants to challenge the award can have an opportunity to come before the same court to do so in a proceeding under Sec.14, and if any such objection is filed, that will have to be disposed of by the court before proceeding to pronounce judgment according to the award and the decree following such judgment. Th