JUDGMENT

Bennett and Ghulam Hasan, JJ. - The suit out of which this appeal arises was brought for a declaration that an arbitration award was illegal and ineffective. The case was tried by "Mr. Abid Raza, Civil judge of Gonda, who disallowed the declaratory relief sought and held that the award could not be declared invalid, but at the same time corrected what he considered to be an inaccuracy in accounting and halved a sum of Rs. 1,680-13-3 which the arbitrator had allowed the Plaintiff Appellant. Learned Counsel for the Appellant says he would not himself describe it as an inaccuracy in accounting and from what Mr. Abid Raza himself says in his judgment it seems to be rather an inadvertent omission, There is no cross objection relating to it, and the order being in the Appellant's favour it is unnecessary for us to deal with this matter.

2. The parties to the arbitration were two brothers, Panna Lal and Jagannath. They executed an agreement on the 25th December, 1937, appointing Babu Shyam Manohar Seth, a Vakil of Gonda, as arbitrator to divide between them their joint property in certain shops. There had previously been a division of house property by another arbitrator and B. Shyam Manohar Seth was concerned only with the partition of two shops, for which purpose he had to consider the stock and the accounts relating to them. It was agreed that he might arrive at such decision as he considered proper alter inspecting the accounts, assets and liabilities and the stock. He could take help from the previous arbitrator or from any other person: he could make enquiry in the presence or absence of the brothers: he could make secret enquiry to find out the correct facts, and he could use his personal knowledge.

3. The arbitrator pronounced his award on the 2nd February, 1938. The main result was that Panna Lal was held liable to pay a sum of Rs. 1,775 to his brother Jagannath. Panna Lal retained one of the shops and Jagannath the other. There was also a provision for the redemption of a loan taken was by one brother from the other on the security of certain ornaments. The loan was taken in connection with the business.

4. The award was made a decree of the Court under the provisions of the Second Schedule of the Code of Civil Procedure, and no objection appears to have been taken to it under the provisions of that Schedule.

5. One of the defences to the declartory suit to set aside the award was that the suit was not maintainable, and there was an issue on this point. It was not properly considered by Mr. Abid Raza. He took with it the previous issue, whether the award had been acted upon by the parties and, if so, what its effect was, and he observed that he had very little to say on these issues. The plea that the award had been enforced was of no consequence. No misconduct or corruption on the part of the arbitrator had been established, and the award could not be set aside. That is all he said, and it is clear from this that he did not really consider the question of maintainability.

6. In our view the suit was entirely misconceived and it should have been held that it was not maintainable. It was open to the Appellant to challenge the award before judgment was pronounced by the Court according to it under the provisions of Schedule II of the Code of Civil Procedure, and it was not open to him to challenge it in any other away. On becoming a decree of the Court, the only remedy open to him was to appeal from the decree and he could only appeal on the ground that the decree was in excess of or not in accordance with, the award. These were the only remedies open to him. The suit should therefore have been dismissed on the ground that it was not maintainable.

7. We might dismiss this appeal at once for these reasons, but we think it desirable to add some further observations as it seems clearly that both the Court and the Plaintiff failed to appreciate what an award should contain, and how it may be challenged. From the arguments put f