P. C. MALLICK, J.

( 1 ) THIS Notice was taken out by the Union of India for an order that a judgment be passed in accordance with the award made by the Arbitrator on May 23, 1952 and a previous order passed by Sarkar J. on July 20, 1954 be recalled and/or set aside, if necessary.

( 2 ) DISPUTE between the parties of and relating to a contract containing an arbitration clause was referred to the arbitration of a Superintending Engineer one C. P. Mallik. The Arbitrator made his award on May, 23, 1952 in favour of the petitioner and the respondent was directed to pay the sum of Rs. 16,247/8/ -. On January 15, 1953 the respondent made an application for setting aside the award. By his order dated June 16, 1954 Sarkar J. set aside the award. On July 20, 1954 Sarkar J. made a further order directing that no judgment be passed in terms of the award.

( 3 ) AGAINST the order of Sarkar J. passed on June 16, 1954 setting aside the award, an appeal was taken by the Union of India. No appeal, however, was taken against the order dated July 20, 1954 refusing to pass a judgment on award. On April 3, 1958 the Appeal Court allowed the appeal and the order of Sarkar J. passed on June 16, 1954 was set aside. The award was confirmed and the application to set aside the award was dismissed. The Order dated July 20, 1954 passed by Sarkar J. was not however set aside inasmuch as no appeal was taken against it, nor was its existence brought to the notice of the Appeal Court while disposing of the appeal.

( 4 ) ON July 20, 1959 the present Notice was taken out by the Union of India for an order that a judgment be passed in accordance with the award and that the order of Sarkar J. dated July 20, 1954 be set aside and/or recalled, if necessary.

( 5 ) IT is contended in the petition that by reason of the decision of the Appeal Court confirming the award and dismissing the application to set aside the award, the Subsequent order dated July 20, 1954 has been superseded and rendered ineffective, It necessary, this Court now should recall or set aside the order passed by Sarkar J. on July 20, 1954. Now that the application for setting aside the award has been dismissed and the award has been held to be a valid award by the Appeal Court, this Court now should pass a judgment in terms of the award in the usual course.

( 6 ) IT is contended by the respondent On the other hand that inasmuch as no appeal was preferred against the order dated July 20, 1954, the said order remains fully effective and has not been superseded by reason of the appeal against the Order dated June 16, 1954 having been allowed. So long as the order passed by Sarkar J. on July 20, 1954 stands, another application for identical relief is not maintainable.

( 7 ) MR. Bhabra appearing for the petitioner contended that it was not imperative and not necessary for his client to file another appeal against the order dated July 20, 1954 over and above the appeal filed against the order dated June 16, 1954. The order dated July 20, 1954 is an order dependent and consequential to the order dated June 16, 1954. The learned Judge having by his order dated June 16, 1954 set aside the award, had no other option than to dismiss the application for judgment upon award and this he did by his order dated July 20, 1954. When the first order dated June 16, 1954 setting aside the award is itself set aside by the Appeal Court and the award is declared to be a valid and binding award, the order dated July 20, 1954 is automatically superseded and it was neither necessary to prefer an appeal against the said order nor get an express order of supersession of the same. Reference was made to the cases in which it was held that when an appeal is taken against the preliminary decree in which a final decree was passed subsequently an appeal is competent against the preliminary decree only and it is not necessary to file another appeal against the final decree also. In the Case of Taleb Ali v. Abdul Aziz decided b

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