1. This appeal is by the applicant whose application under section 33 of the Arbitration Act for declaring that reference to arbitration made on 19-7-1945 was a nullity and the award given in pursuance thereto was also a nullity was rejected by the learned trial Judge.

2. In his application the appellant alleged 'inter alia' that the reference was void for indefiniteness and vagueness and also because the reference failed to specify exactly the nature of the dispute or the property with respect to which the relief of partition was claimed. The appellant also alleged that two of the arbitrators expressed unwillingness to act and signed a piece of paper giving up their authority under agreements of reference and requested one of the arbitrators to send the same to the parties. Nothing was done in the direction of making a partition. The appellant learnt that the arbitrators were colluding with the respondents-non-applicants. So the appellant sent a registered notice to one of the arbitrators to inform the former if there was a completed award and calling upon him to file the award, if any. No reply being received, the appellant made the present application. He alleged that the award, if any, was invalid because the arbitrators did not act together in giving the decision, and their deliberations were made in the absence of the appellant and without his knowledge. Further, it was alleged that the arbitrators ignored all law of procedure in sitting, hearing and examining evidence and even went outside the reference in that the arbitrators acted on their personal knowledge.

3. The nor-applicant-respondents denied the allegations and alleged that the arbitrators made and signed the award on 1-8-1945. published it and gave notice of the award and sent its copies to the appellant and the respondent on 6-8-1945. They pleaded that the applicant's right to challenge the award was barred by time.

4. The learned trial Judge dismissed the application negativing the objections raised by the appellant to the validity of the reference and the award and further holding that the application was barred by time.

5. In appeal it was contended by the appellant that the learned trial Judge was in error in holding that the application was barred by time. It was submitted that there was no valid reference to the arbitrators and consequently the award itself was a nullity. It was further contended that the award was vitiated by reason of the arbitrators' examining the non-applicant and taking evidence behind the back of the appellant, by their importing personal knowledge in giving the award, and, finally, by their failure to act together in making the award.

6. The first point for decision is whether the application was barred by time. The learned trial Judge held that time began to run from 6-8-1945 when notice was given to the appellant by the arbitrators under S. 14(1), Arbitration Act, The learned Judge was presumably of the view that the application was governed by Art. 178, Limitation Act, because he reckoned limitation from the date of the service of the notice of the making of the award. But the application in question is not one for filing in Court the award but one under S. 33. That being so, Art. 178 has no application to the case. In fact, the learned counsel for the respondent did not dispute this. He, however, strenuously contended that the application should have been thrown out as premature and incompetent because it was made before the filing of the award in Court. The learned counsel relied upon - ' Ratanji Virpal & Co. v. Dhirajlal Manilal, 1942 AIR(Bom) 101' (A); - ' Bengal Jute Mills Co. Ltd. v. Jewraj Hiralal, 1944 AIR(Cal) 304"(B) and - 'Bishun Prasad v. Gopal Das,1950 ILR(All) 50'(C).

These cases are however distinguishable. The application in question in each of the cited cases was held to be incompetent and rejected because the award was not filed in Court before the disposal of the case. In the present case, the award was fi