1. This appeal under section 39 of the Indian Arbitration Act, 1940 (for short "the Act") has been filed by the appellants, against the order dated 18.2.1991 passed by the Third Additional District Judge Vidisha in MJC No. 2/88, by which the trial Court rejected the application for making the award Rule of the Court, filed under section 16 of the Act and held that the award dated 8.3.1982 was ineffective and void.

2. It is submitted by the learned counsel for the appellants that with the consent of the parties vide agreement dated 29.5.1980 the matter was referred to the arbitrators and they entered upon the reference on 29.7.1980, completed the arbitration proceedings and passed the award on 8.3.1982. The respondents even after expiry of four months period that is, the period prescribed for giving the award, appeared before them, took part in the proceedings before the Arbitrators and never raised any objection to the arbitration proceedings and only when an application under section 16 of the Act for making the award Rule of the Court was filed, they raised an objection and in such a situation the condition of four months period will be deemed to have been waived. Learned trial Court contrary to the decision of the apex Court in the case of State of Punjab v. Hardyal [1985 SC 920] passed the impugned order declaring the award as null and void. It is further submitted that on 10.1.1996 they filed an application to enlarge time for making the award.

3. On the other hand Shri K.N. Gupta, learned senior counsel for the respondents opposed the arguments of the learned counsel for the appellants and submitted that in view of the law laid down by the apex Court in the case of State of Punjab v. Hardyal (supra) and Division Bench decision of this Court in Misc. Appeal No. 72/86, M/s. Jiyajirao Cotton Mills Ltd. Birlanagar v. M/s. Jindal Handloom Emporium and others decided on 18.10.1996 the trial Court has not committed any error in passing the impugned order and dismissing the application filed under section 16 of the Act by holding that the award after the expiry of four months is null and void.

4. I have heard the arguments of the leaned counsel for the parties and perused the record of the case.

5. Section 28 of the Arbitration Act, 1940 and Clause 3 of First Schedule reads as under:

Section 28 reads:

"28. (I) The Court may, if it thinks fit, whether the time for making the award has expired or not and whether the award has been made or not, enlarge from time to time the time for making the award.

(2) Any provision in an arbitration agreement whereby the arbitrators or umpire may, except with the consent of all the parties to the agreement, enlarge the time for making the award, shall be void and of no effect." Clause 3 of First Schedule provides:

"3. The arbitrators shall make their award within four months after entering on the reference or after having been cal1ed upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow."

6. Sub-section (1) of S. 28 is very wide and confers full discretion on the Court to enlarge time for making the award at any time. The discretion under Subsection (I) of S. 28 should however, be exercised judiciously. Subsection (2) of S. 28 also makes it evident that the Court alone has the power to extend time. It further provides that a clause in the arbitration agreement giving the arbitrator power to enlarge time shall be void and of no effect except when all the parties consent to such enlargement. It is not open to arbitrators at their own pleasure without consent of the parties to the agreement to enlarge time, for making the award.

7. Here in the present case, both the parties voluntarily took part in the arbitration proceedings even after expiry of four months, that is, the period prescribed for giving the award till the date of the award and never raised any objection before the Arbitrator that they have no powers to commence