JUDGMENT

McNair, J. - This is an application for setting aside an award. The award in question was made on 19th May 1942, and the application to set aside that award was made on 1st August 1942. A preliminary point has been taken on behalf of the respondents to the effect that the application is misconceived because the award has not been filed and is not before the Court. The question now before me was raised in the Bombay High Court in Ratanji Virpal v. Dhirajlal Manilal ('42) 29 AIR 1942 Bom. 101. The head-note of that case is as follows:

2. Under the Arbitration Act, 1940, till the award has been filed in Court, it is not competent to a party to an arbitration to file a petition to set aside the award. In cases where it is necessary to have the validity of an award ascertained and the award has not been filed in Court it is open to a party to the arbitration to proceed u/s 14(2), Arbitration Act, to have the award filed in Court." It is clear that under the Arbitration Act of 1940 the validity of an arbitration agreement or an award can only be challenged by means of an application. Under the previous Act it: was considered possible to challenge the validity of an award by means