( 1. ) THESE three First Appeals (Appeals Nos. 17, 18 and 19 of 1959) are directed against the judgment and decree of the Additional District Judge, Guna, While rejecting the application of the plaintiff for setting aside the award, the Additional District Judge, disposed of the whole case by pronouncing judgment, and, passing a decree according to the terms of the award. Our decision will go yern all the three appeals.

( 2. ) IN short the facts of this case are that the plaintiff filed three suits in the District Court, Guna, against the defendant on the basis of some Hundis executed by the defendant in favour of the plaintiff, the suits were resisted on the ground that the matter in dispute had been referred to an arbitration, consisting of three persons, that the award had been given and the defendant prayed that the award may be directed to be filed and decree passed in terms of it.

( 3. ) THE trial Court directed the award to be fifed and gave an opportunity to parties (the award was in favour of the defendant) to file objections. The plaintiff objected to the award on various grounds and prayed to the Court that it be set aside. The trial Court rejected ihe application for setting it aside, and, holding that the award was Valid, pronounced judgment under Section 17 of the Arbitration Act (hereafter referred to as the Act) according to the award. These appeals are filed against the judgment and decree of trial Court, in which objections are also taken to the refusal of the Court to set aside the award.

( 4. ) MR. Bhagwan Das Gupta, learned counsel for the respondent has raised a preliminary objection that Section 17 of the Act bars an appeal and on this short ground, the appeals must be rejected. This objection to a certain extent is correct. If these appeals are treated merely as appeals against the judgment and decree passed on the award, then there is no doubt that Section 17 of the Act bars these appeals. But the order of the trial Court is composite in nature. It refused to set aside the award and at the same time passed a decree under Section 17 of the Act. An order refusing to set aside an award is appealable under Section 39 of the Act, but a decree based on the award is not. Thus it will appear that while the first part of the order (refusing to set aside the award) is appealable, the latter part of it in so far as it relates to the pronouncement of a judgment on the basis of the award is not appealable. In AIR 1925 All 404, Jagat Pande v. Sarawan Pande, it has been held that where an order, directing an award to be filed (which is appealable) and a decree in accordance with the award were not separately passed, but the court disposed of the whole case by a single order, then in substance the appeal was from an order (which is appealable) and was competent. This view appears to have been followed by other High Courts as wen. See Veeraswamy Chetty v. Varadiah Chetty, AIR 1957 Andh Pra 493, Amarchand v. Moosabhai, AIR 1955 Hyd 213, Bholanath v. Chandra Sekhar, AIR 1950 Cal 53. The settled position of law now is that where the order of a court is composite, which on one hand dismisses the objections of a party to the award, and, on the other, pronounces judgment on the basis of the award, then such an order should be treated as an order falling under Section 39 of the Act and an appeal is maintainable against it. In this view of the matter, treating the order under consideration as being one under Section 39 (vi) of the Act, we hold that the appeal is competent.

( 5. ) MR. Patankar, learned counsel for the appellant, attacks the order, refusing to set aside the award, on three grounds. First, that out of the three arbitrators that were appointed by the parties, one arbitrator resigned and that in the cicumstances the other two were not competent to give the award; two, that the last clause in the agreement (Ex. D. 2) to refer the matter to arbitration has been inserted subsequent to the agreement by way of int