An order of remittance of an arbitration award is not appealable under Section 39 of the Arbitration Act, 1940.

TRIVEDI, J. :- These are two connected appeals and may be conveniently decided by one judgement as they raise same common questions of fact and law.

2. Both the appeals have been filed by the State of U.P., against Smt Shabati Devi and 6 others who are the legal representatives of Sita Ram Gupta. The facts giving rise to these appeals may be summarised as follows :

Sita Ram Gupta was a building contractor and there was a contract between him on the one side and the Executive Engineer, P.W.D. on behalf of the State of U.P. on the other by which Sita Ram Gupta was given a contract for building three storeyed ward in the King Georges Medical College, Lucknow. This work was to start from 20-10-1948 and to be completed by 18-10-1949. The work according to the respondents could not be completed within the stipulated time on account of defaults and omissions of the officers of the appellant. Subsequently, the time for completion of the building was extended upto 12-10-1950. Sita Ram Gupta then filed a suit against the State of U.P. for recovery of Rs. 3,53,577-2-6 on account of the constructions made by him in terms of the contract. During the pendency of the suit he died and seven of his heirs and legal representatives including a daughter Km. Runa Gupta were substituted in his place. Thereafter the parties agreed on 20th July, 1962, to refer the dispute to the arbitration of Sri U.C. Oswal, the then Deputy Legal Remembrancer to U.P. Government. The arbitrator made an award on 10-10-1965.

Against this award the appellant-defendant filed objections under Section 30 of the Arbitration Act with a prayer that the award may be act aside. The respondents-plaintiffs also filed objections. On hearing these objections the Additional Judge Small Causes, Lucknow, decided to remit the award and by an order dated 2-3-1966 dismissed the appellant-defendant's objection to set aside the award and remitted the award to the arbitrator for reconsideration of three points stated in the judgement. The arbitrator was directed to submit his final award within two months. F. A. F. O. No. 41 of 1966 has been filed by the State of U.P., aggrieved from this order of the lower court dated 2nd March, 1966. In accordance with the aforesaid order of remittance the final award was made by the arbitrator on 3rd May, 1966 and a sum of Rs. 90,416.94 paise was awarded to the respondents against the defendant-appellant with peadente lite interest at the rate of 3% per annum simple except for the period commencing from 1-7-57 and ending on 31-7-60. There was also an order with regard to costs. Against this award also objections were tiled on behalf of the appellant, but they were partly allowed and the award dated 10-10-1965 and the final award dated 3-5-1966 treated as the supplementary award 1966 were made rule of the court with the modification that no interest was to run on the amount of Rs. 692-12-9. It is against this judgement that F. A. F. O. No. 9 of 1967 has been filed.

3. A preliminary objection has been raised by Sri Nazir Uddin, learned counsel for the respondent in both these appeals which may be first considered. The objection is that in these appeals one of the heirs and the legal representatives of Sita Ram Gupta deceased plaintiff, namely, Km. Runa Gupta was not impleaded as a respondent Runa Gupta, it is submitted, was impleaded as one of the plaintiffs in the plaint on the death of Sita Ram Gupta on 3-2-69 and on account of omission to implead her in the array of respondents the memorandum of appeal becomes fatally defective and these appeals an liable to be dismissed on this ground alone. When this defect was brought to the notice of a Bench of this Court it was pointed out by way of explanation that the came of Runa Gupta was omitted from the formal order prepared from the impugned judgement of the lower court. The Bench ordered that appellant should take steps to get the formal order corrected by securing addition of the name of Runa Gupta in