( 1 ) THIS is an application by the plaintiffs whose application for the filing of an award has been dismissed by the Additional Civil and Sessions Judge of Banaras on appeal. It was alleged by the applicants that on 5th November 1943 an agreement was entered into by the parties for referring their disputes to arbitration, that accordingly the disputes were referred to arbitration, and that the arbitrators gave an award on 23rd January 1944. The applicants applied on 17th July 1944 for the filing of the award. The application was resisted by the defendants-opposite parties on the ground that there was no valid reference and that their signatures on the supposed reference were obtained fraudulently. The learned Munsif, in whose Court the application was filed, dismissed the objection of the opposite parties and passed a decree in terms of the award. The opposite parties filed an appeal from the decree in the Court of the learned Civil Judge who, holding that there was no valid agreement for reference, set aside the decree of the learned Munsif and dismissed the application.

( 2 ) THE only ground taken by the applicants before us is that no appeal lay in the Court of the learned Additional Civil and Sessions Judge against the decree passed by the learned Munsif. Under Section 17, Arbitration Act, a decree passed on the basis of an award is not appealable except on the ground that it was passed in excess of the award or was otherwise not in accordance with the award. The appeal that was filed by the opposite parties was not on the ground that the decree was in excess of the award or not in accordance with it; it was only on the ground that the signatures on the agreement for reference were obtained fraudulently on blank sheets of paper. Therefore, the appeal did not lie Under Section 17 and it is to be seen whether it lay Under Section 39. Under this section, an appeal would lie from an order setting aside or refusing to set aside an award. The opposite parties had applied to the learned Munsif that the application for the filing of the award should be rejected on the ground that there existed no valid agreement for reference and the learned Munsif refused to set aside the award. But he did not pass a separate or formal order refusing to set it aside. He wrote out a judgment disposing of the suit on the basis of the award, and a decree was prepared in accordance with it. It is the judgment that contains the fact of refusal to set aside the award and the grounds for the same. Though there was no separate order refusing to set aside the award, the opposite parties should have filed their appeal against the order and not against the decree that was passed in accordance with the judgment. They should have first got a formal order prepared by the learned Munsif and attached a copy of it to their memorandum of appeal. It has now been contended before us on their behalf that their appeal, though expressed to be an appeal from the decree, should be treated as an appeal Under Section 39 from the order of the learned Munsif refusing to set aside the award, contained in his judgment.

( 3 ) THERE is no doubt about the intention of the opposite parties, which was to challenge the order of the learned Munsif refusing to set aside the award on the ground that it was improperly obtained on an agreement to refer which was not signed by the opposite parties with the requisite intention. They did not at all want to challenge the decree otherwise than by challening the award itself, The appeal itself was under, stood by all concerned as an appeal from the order refusing to set aside the award. The learned Additional Civil and Sessions Judge entertained the appeal and even allowed it on the assumption, that it was from the order and not from the decree. The applicants themselves understood it to be an appeal from the order and not from the decree and consequently did not plead before the learned Additional Civil and Sessions Judge that the