1. This revision raises the question as to whether the provision in Para.2 of the First Schedule to the Indian Arbitration Act X of 1940 (hereinafter called the Act) is mandatory or merely directory, in character. In view to its importance it was referred by one of us before whom it came on in the first instance, to a Division Bench.

2. The petitioner and the 1st respondent by agreement dated 19-5-1954, referred their differences in the matter of the settlement of their partnership accounts, to two arbitrators viz., respondents 2 and 3. The

arbitration agreement did not, within the meaning of S.3 of the Act exclude the applicability of the First Schedule to the Act, Para.2 of which provided:

"2. If the reference is to an even number of arbitrators, the arbitrators shall appoint an umpire not later than one month from the latest date of their respective appointments".

However, respondents 2 and 3 did not appoint an umpire whether before they commenced functioning as arbitrators or during its course and on 31-3-1954 that is, well within the month after their appointment, they brought out their award. Later, at the instance of the petitioner they filed the award in the Thodupu