JUDGMENT

1. By this appeal under section 37 of Arbitration and Conciliation Act appellants have challenged the order of trial Court dated 28.2.2000 whereby the objections under section 34 of Arbitration and Conciliation Act, 1996 (for short the Act) have been decided and suit has been dismissed as not maintainable.

2. The original plaintiff was late Phoolchand, the ancestor of appellant, who had filed the suit for declaring the partition dated 26.2.1974 as illegal and void with the plea that the suit properties were his self acquired property and he was the sole owner thereof in which respondents had no right. In the year 1973-74 he was under debt and respondents had pressurized him saying they will repay his debt and on this condition they had got partition deed executed. In respect of payment of debt, an agreement dated 16.2.1974 was also executed but the original defendant No.1 by manipulating the partition deed had got the suit properties written in his name and had also got the gift deed executed from the plaintiff. Further plea was raised that no partition had taken place hence decree was sought to declare the partition deed dated 16.2.1974 as null and void.

3. The respondents by filing written statement had denied the plaint averments and had also denied that original plaintiff Moolchand was sole owner of the property. A plea was raised that the suit property was the joint family property and in terms of partition dated 16.2.1974 it was received by respondents which they were using. It was also denied that partition deed was got executed by exerting any pressure.

4. The suit was filed on 15.2.1983 and during pendency of the suit on 21.1.1999 the parties to the suit had entered into arbitration agreement, therefore, with consent, trial Court had referred the matter to the arbitration under the Act by appointing Shri Manoharlal Jain advocate as arbitrator vide order dated 27.1.2000. trial Court had kept the proceedings in the civil suit pending awaiting the award of the arbitrator and arbitrator had given the award on 10.1.2000 and had filed the award in the Court. The appellant had filed objections under section 34 of the Act before the trial Court and trial Court by order under appeal dated 28.2.2000 has rejected the objections under section 34 of the Act and has dismissed the suit as not maintainable in view of the award of the arbitrator by further directing to prepare a decree accordingly.

5. Learned counsel for appellant submits that one of the respondent, namely Kamlabai, had died in the year 1995, during pendency of the suit and before reference was made to the arbitrator, but her LRs were not brought on record, therefore, subsequent proceedings are void. He submits that the arbitration agreement was not signed by Kamlabai or her LRs, hence the decree in her favour is nullity. He submits that issue No. 10 has wrongly been decided by arbitrator and the trial Court has committed an error in directing to prepare the decree whereas under the Act of 1996 there is no provision for passing of the decree on the basis of arbitration award. He submits that objections under section 34 of Act were filed before the same Court because the suit was kept pending before the trial Court.

6. Learned counsel for respondent has raised an objection that first appeal against rejection of objection under section 34 is not maintainable and arbitration appeal is required to be filed. He submits that no such objection about death of Kamlabai was raised in proceedings under section 34 of the Act and question of ascertainment of death itself is a factual issue. He has raised an objection that the arbitration award itself is a decree therefore, mentioning of trial Court to prepare decree is inconsequential. He further submits that in terms of section 19 of the Act all provisions of CPC are not applicable and even the provision relating to return of plaint under Order 7 rule 10 CPC apply only to plaint therefore, there was no question of returnin