JUDGMENT

Gentle, J. - This is an appeal against the judgment of Das J. granting the respondents' application to set aside an award made by Ameer Ali J. as umpire in an arbitration under two agreements, both dated 17th March 1941, made between the parties, by which they referred to arbitration three suits instituted in this Court. Each agreement, in Clause 6, provides as follows:

That if there is any difference between the arbitrators such difference and if any matter is not decided by the arbitrators such matter shall be decided by His Lordship Mr. Justice Ameer Ali.

2. On behalf of the appellant, the Bengal Silk Mills Co. Ltd., it is contended that (a) Ameer Ali J. was not appointed an umpire by the two arbitration agreements, (b) he did not dispose of the matters which "came before him in the capacity of an umpire, but as a Judge of this Court acting extra cursum curiae with the agreement and consent of all parties, and (c) if his disposal was as umpire the application to set aside the award was incompetent as it was made before the award has been filed in Court.

3. In January 1937 one Golam Hossain Cassim Ariff died leaving a will by which he appointed his widow, Aisha, and his two