The court has the power to set aside an award on the ground of invalidity of reference or if the award is prima facie illegal and not fit to be maintained, irrespective of any objection by the parties.

VISWANATHA IYER, J.:- This is an appeal by the 2nd counter-petitioner in Arbitration Act Petition No. 1 of 1955 on the file of the Quilon District Court. Under Ext. D3 agreement entered into between the Ist and 2nd counter-petitioners the 2nd counter-petitioner supplied cashewnuts to the Ist counter petitioner. The same was delivered at Quilon on 17-2-1964. Under the agreement any dispute regarding the quality of the goods has to be referred to an arbitration and the Arbitration Rules which govern the parties provide for appointment of Arbitrators, the time within which that should be done and the procedure which should be followed by Arbitrators. Complaining that the quality of the goods supplied was inferior the Ist counter-petitioner requested the 2nd counter-petitioner to appoint an Arbitrator. There was some attempt at settling the matter otherwise and when that failed the Ist counter-petitioner pressed for a reference to Arbitration. He informed the Secretary, Indian Cashew Exporters' Association and requested him to arrange for the arbitration. He also nominated his Arbitrator. The said Association contacted the appellants and requested them to nominate their Arbitrator. Since that was not done the Arbitrator appointed by the Ist counter-petitioner acted as a sole Arbitrator and proceeded with the arbitration. He made an award to the effect that the appellant should pay Rs. 17,932.33 to be Ist counter-petitioner. This award was filed into court by the petitioner-Arbitrator and notice of it was given to counter-petitioners 1 and 2. Counter-petitioner No. 1 moved for passing a decree in terms of the award. But, the appellant applied to set aside the award and also filed objection to the passing of the judgment on the award. The application to set aside the award was filed out of time and so it was rejected. But, the lower court considered the objections on the merits and finding that there are no grounds to set aside the award suo motu passed a decree in terms of the award. The appeal is filed by the 2nd counter-petitioner in these circumstances.

2. A preliminary objection is taken to the maintainability of the appeal. Section 39 of the Arbitration Act, 1940 provides for an appeal against certain orders passed by the court in Arbitration proceedings. Section 39, Clause (vi) provides for an appeal against an order refusing to set aside or setting aside an award. The appellant's counsel relies on this provision to sustain the appeal. No doubt, the application to set aside the award was dismissed on the ground of Limitation and the decision under appeal was rendered under Section 17 of the Arbitration Act. Section 17 requires the Court to be satisfied that there are no grounds to set aside the award, and if so satisfied, to pass a decree. It is not necessary that the order refusing to set aside the award must be an order on the application to set aside the award. Such an order can as well be contained in the order passed under Section 17 of the Act. The lower court has stated in the order under Section 17 that there are no grounds to set aside the award and that comes within the scope of Section 39 (vi) of the Act. Therefore, the preliminary objection is repelled.

3. The award Ext. D1 filed by the Arbitrator may be challenged by the appellant as invalid. But, if the challenge is based on any of the grounds mentioned in Section 30 of the Act it has to be made by an application under Section 33 and that should be filed within a particular time, namely 30 days of the receipt of the notice of the filing of the award (see Article 119 of the Limitation Act). The appellant admittedly filed an Application, but it was out of time and so was rightly rejected. The objection filed against accepting the award was also filed beyond the time limit prescribed under the said Article. So, it is not open to the appellant to challenge the award on any of the grounds mentioned in Section 30 of the Arbitration Act (see Madan Lal v. Sunder