Plea of such ground can be taken appeal.

The facts connected with this Civil Revision Petition are these: There was a suit for partition before the District Munsif’s Court, Ambasamudram, by one brother against others which was referred to arbitration. The first defendant, the eldest brother, claimed that except items 1 to 5 of the plaint schedule the rest of them, items 6 to 25 were his self-acquisitions standing either in his own name or in the name of his wife, the second defendant. The advocate-arbitrator agreed with the first defendant’s contentions and made an award which the Court however remitted on the ground that it was not clear whether every individual sale in respect of the items in suit was considered by the arbitrator. On remittal the arbitrator gave notices to both the parties. The plaintiff did not turn up with the result that the arbitrator, finding that he could do nothing, sent back the record to the District Munsif. He thereupon took up the objections to the award which had been previously filed, and after examining the arbitrator and the plaintiff found that there was no misconduct about the proceedings of the arbitrator and upheld the award. The plaintiff thereupon preferred an appeal to the Court of the Subordinate Judge of Tinnevelly objecting to the award as one which became void under sub-section (3) of section 16 of the Indian Arbitration Act X of 1940 on the failure of the arbitrator to reconsider the award on remittal and submit his decision within the time fixed. The objection was upheld by the learned Subordinate Judge, so that the suit stands to be tried by the learned District Munsif as a result of the decision of the learned Subordinate Judge.

Defendants 1 and 2 have preferred this revision petition against the order of the learned Subordinate Judge. Their contention is that the order of the original remittal by the learned District Munsif was itself irregular, and that although they did not file an appeal against the order because of its unappealability it would be open to them to plead the irregularity as they did in the appeal preferred by the plaintiff ‘against the order of the learned District Munsif eventually upholding the award. This contention is, in my opinion, well-founded. The ground on. which the original remittal was made by the learned District Munsif is not one contemplated by any of the clauses of sub-section (1) of section 16. The procedure adopted by the learned District Munsif seems more akin,, in my judgment, to the procedure by way of remand in the exercise of inherent owers on the part of an appellate Court under the Civil Procedure Code. No Court is entitled to add to the grounds of remittal set forth in the statute, and the order of remittal made by the learned District Munsif must accordingly be held to be invalid. There was and could be no appeal against that order, because none is provided for by the statute, and when against the order of the learned District Munsif upholding the award an appeal was taken by the plaintiff to the Court of the Subordinate Judge it was undoubtedly competent to the first defendant to plead the irregularity of the order of remittal and to sustain the order of the learned District Munsif on the ground of such irregularity.

In Abdul Rahman v. Yar Muhammad1, to which my attention has been drawn by the learned counsel for the petitioners an award was remitted under section 520 of Act X of 1877. The arbitrators refused to reconsider it, and the Court thereupon proceeded with the suit, and. gave the plaintiffs a decree. The defendants appealed from such decree on the ground, amongst others, that the award had been improperly remitted under section 520. It was held that the question whether the award had been properly remitted under section 520 or not could be entertained in such appeal. Says Oldfield, J., at page 641 of the report:

“I consider we are competent to entertain this appeal, as it is only where a decree has been made in the terms of the award that no appeal lies; an