JUDGMENT

Harrison, J. - The plaintiffs applied under Article 20 of the second schedule of the Civil Procedure Code to have an award given by arbitrators filed. The defendants raised various objections. These were gone into by the Senior Subordinate Judge and disposed of in his order, dated the 7th February, 1922, which concluded as follows:

I accordingly grant a decree in terms of the award and order defendant to pay to plaintiff a sum of Rs. 32 as costs of these proceedings.

2. From this order the defendant Ghulam Mustafa has lodged this appeal under Section 104 (f). Mr. Niaz Ali raises a preliminary objection that the appeal does not lie and that if it does, it is barred by time. He points out that there is no appeal from the decree which was eventually drawn up. He contends first that the order filing the award must mean the order by which the arbitrators were directed to send their award or bring their award to Court before the objections had been lodged or disposed of. In the second place, he objects that there is no order in so many words filing the award.

3. The first point is disposed of by the wording of paragraph 21 of Schedule II, which makes it quite clear that the order filing an award is passed after the objections have been disposed of. His second objection is technically correct and it would obviously have been better if the Senior Subordinate Judge has consulted the Code and passed an order in the correct terms. There can, however, be no doubt that his order is tantamount to an order filing the award and that this is what he meant by saying, "I grant a decree in terms of the award."

4. Mr. Niaz Ali further condends that under paragraph 21 (2), as no appeal lies from a decree there can be no appeal from the order. This question has been exhaustively gone into in Ram Ditti v. Amar Singh (1911) 103 P.W.R. 1911, and it has been decided that an appeal does lie from an order filing an award even if in consequence the decree has to be set aside. The judgment of Rattigan, J., explains the difficulty which arises from there being apparently two contradictory provisions in the Code, and as one must be ignored he explains that the provisions of Section 104 (f) should be observed and paragraph 21 (2) of the Code should be treated as a dead letter.

5. In arguing on the merits of his appeal Mr. Abdul Aziz has confined himself to three points and has dropped the remaining grounds of appeal. The first is, that the terms of the reference were dear and directed the arbitrators to give an award regarding the property, moveable and immoveable, left by the two brothers, Abdul Rahman and Muhammad AH, whose descendants are now disputing over the partition. They came to a finding that Abdul Rahman in his lifetime had sold his one-half share to his son and nephew and Counsel urges that this was beyond the scope of the reference inasmuch as they were not empowered to hold that before his death Abdul Rahman had parted with his property. There is, in my opinion, no force whatever in this contention. They had to deal with the property which had belonged to the two brothers and they were quite right in coming to the decision, if satisfied with the correctness of the same, that one of the brothers had parted with the whole or a part of his share during his lifetime.

6. The second point was that, although there were seven parties to the reference the shares of two only have been defined. The remaining five are the younger brothers and sisters of Ghulam Ali, all of whom are represented by Mr. Niaz Ali. They are quite satisfied that their shares should be left joint, and, therefore, the present appellant has no grievance and the matter is no concern of his.

7. The third point pressed is that the award did not go far enough and did not deal with certain shares in a shop held by the descendants of the two brothers. It does consider this shop inasmuch as it explains that this is naya harobar and was not included in the property held by the two brothers.