No appeal lies against a decree passed in terms of an arbitration award under section 17 of the Arbitration Act, 1940, unless the court has either set aside the award or refused to set aside the award.

( 1 ) THIS appeal is directed against the judgment/order dated 16. 9. 97 passed by the learned single Judge of this court (Sujit Kumar Sinha, J) whereby a decree in terms of an arbitration award has been passed. Facts leading to the filing of the appeal are that the respondent R. C. Banerjee had lodged claims with the arbitrator Shri R. M. Moitra in respect of Contract No. 57 of 1983-84 from the office of the Superintendent Engineer, public Works Department, Northern Circle, Govt. of West Bengal, Jalpaiguri. In a detailed speaking Award the said arbitrator awarded an amount of Rs. 25,04,520/- in favour of the respondent by allowing his various claims against the appellants. The arbitrator however had rejected all the counter claims of the appellants. The award was passed along with interest, including pendentelite interest. Whereas the principal sum award was Rs. 25,04,520/- the interest calculated was Rs. 34,25,360/ -. In the award the arbitrator had also awarded costs of Rs. 60,000/ -. Under the three heads therefore the following break-up of the amounts can be shown as having been awarded by the arbitrator in favour of the appellants; rs. 25,04,520/-rs. 34,25,360/-rs. 60,000/-

( 2 ) THIS award was filed in the court and, as observed above, on 16th September, 1997 Sujit Kumar Sinha, J. directed that a decree in terms of the award be passed. He also directed levy of simple interest @ 6% per annum from the date of the decree untill realisation. Costs assessed at 100 gms were also awarded in favour of the respondent. Award was made and published by the Arbitrator on 28th May, 1997 and was filed in the count on 23rd June, 1997. Notices of the filing of the award in the court were admittedly received by the appellants on 8th July, 1997. It is therefore admitted case of the parties that until 16th September, 1997 when the matter was taken up by Sujit Kumar Sinha, J and the decree in terms of the award was passed, the appellants had not filed any application for setting aside the award either under section 30 or section 33 of the Arbitration Act 1940 nor had the appellants taken any other steps to object to the award or to ask the court in any other manner that the award be set aside. In other words when the matter came up before the court on 16th September, 1997, there was no request or prayer on behalf of the appellants that the award be set aside. Actually it also appears that on 16th September, 1997 when the impugned judgment was passed by the learned single Judge, no one had in fact appeared before him on behalf of the appellants.

( 3 ) THE first and the foremost point which has been raised by the learned Advocate appearing for the appellants is that judgment/order dated 16th September, 1997 is without jurisdiction because the award ought to have been filed before the Division Bench of the High Court because the order of reference to Arbitration originally was passed by the Division Bench on 5. 7. 1991. We are not impressed at all with the submission because undoubtedly on 16th September, 1997 when the judgment/order under challenged in this appeal was passed by the learned single Judge (Sujit Kumar Sinha, J), he had the jurisdiction to hear Arbitration matters, including the matters relating to the filing of the awards and passing judgments upon the arbitration awards under section 17 of the Arbitration Act. It is nobody's case that the learned single Judge on 16th September, 1997 did not have the jurisdiction to deal with the matter. If therefore, merely because the order of reference as originally made was passed by a Division Bench of this court, it does not mean that the award also should have been filed before the Division Bench. Actually the award was filed before the Registrar, original side of this court as was required to be done by the original Side Rules and the Registrar, original side had sent the notices of the filing of the award to the parties and thereafter the matter was put up by him befor