Order 22 of the Civil Procedure Code does not apply to arbitration proceedings, and even if it did, Rule 6 would have been applicable in this case, as the hearing was closed and an award had been made and filed in Court.

( 1 ) THIS is an application by one Probhu Dayal Jhunjhunwalla, one of the heirs and legal representatives of the original petitioner Ramnibas Jhunjhunwalla, since deceased, for inter alia recording the death of Ramnibas Jhunjhunwalla and Benarasilal Jhunjhunwalla, the original respondent setting aside the abatement, if any, of the judgment upon award matter and recording the names of the heirs and legal representatives of the deceased Benarasilal Jhunjhunwalla and Ramnibas Agarwalla for necessary and incidental orders.

( 2 ) IN or about March 1961, the arbitrators entered into the reference. On April 10, 1961 the award was made and signed by the arbitrators. On the 28th May 1963, the award was filed in Court. On or about July 6, 1962 an application was made by Ramnibas Jhunjhunwalla for inter alia taking the award off the file and alternatively setting it aside. On the 16th July, 1962 the judgment upon award matter appeared in the list.

( 3 ) ON the 18th day of April 1965, Benarashilal Jhunjhunwaila died. On 12th day of July 1965 Ramnibas Jhunihunwalla died

( 4 ) THE heirs and legal representatives of both the original petitioner and respondent are mentioned in paragraph 8 of the petition

( 5 ) IN the petition sufficient cause was sought to be shown for not taking steps to have the judgment upon award not pronounced by alleging that there were negotiations between the applicant and his brother after the death of Ramnibas Jhunjhunwalla on or about 12th day of July. 1965 and the respondent so long as he was alive and after his death on 13th April, 1965 between the applicant and his mother on the one hand and the eldest son of the respondent on the other. There were no particulars indicating when the negotiation for settlement started and when it ended. There are again no particulars as to whether any proposal was made by either party and so what was the result thereof. This case of negotiation was denied by the respondent in this application In my opinion, on the materials before me it is difficult to hold that there were negotiations for settlement though there are circumstances which indicate the parties were minded to carry on negotiations for settlement The circumstances are that the respondents in this application after the death of their father have not taken any steps to bring themselves on the record. The further circumstance is that the parties are near relations and that the parties have not taken steps for years to bring the application and the judgment upon award matter to a hearing.

( 6 ) HENCE, the application as an application for setting aside the abatement fails. Mr. Shroff, learned counsel appearing for the applicant, however, sought to support the application on purely points of law on a different basis entirely. He firstly submitted that it was unnecessary in an arbitration proceeding to make an application for setting aside the abatement, for Order 22 of the Civil Procedure Code does not apply to arbitration proceedings. He secondly submitted that even if it does apply, Rule 6 of Order 22 is applicable to the facts of this case and here the abatement need not be set aside.

( 7 ) THE Arbitration Act is a consolidating Act in certain respects. Be that as it may Section 41 of the Arbitration Act, however, makes the provisions of the Code of Civil Procedure, 1908 applicable to arbitration proceedings. The relevant portion of Section 41 is as follows:--"subject to the provisions of this Act and of rules made thereunder: (a) the provisions of the Code of Civil Procedure 1908 shall apply to all proceedings before the Court, and to all appeals under this Act. "

( 8 ) THEREFORE, the first question for consideration is whether having regard to the provisions of the Arbitration Act and Rules made thereunder, Order 22 can at all be applied to arbitration proceedings.

( 9 ) ORDER 22 is expressly applicable to suits and appeals. It proceeds on the basis that on the death of one or more of the parties,