JUDGMENT

1. This appeal is directed by the plaintiffs of a partition suit against an order dated 6th February 1962, of the 1st Additional Subordinate Judge of Muza-ffarpur rejecting the objection to an award and refusing to set aside the same, under Section 30 of the Indian Arbitration Act, 1940. The concluding portion of the impugned order reads as follows :--

"Let a final decree be drawn up in terms of the award with the modification suggested above, that is to say, 2 bighas 15 dhurs which has been allotted to Laljhari Kuer (Ramjhari Kuer) by the arbitrators will be allotted to the Takhta of the plaintiffs. With this modification the award is confirmed. The award, map and barawarda with the aforesaid modification shall form part of the final decree. In view of the fact that I have modified a portion of the award there will be no order as to costs. The suit is disposed of accordingly."

2. The appellants and the respondents belonged to a joint Mitakshara family and the plaintiffs appellants instituted a suit for partition on the ground that defendant No. 1, Gokhul Prasad Sah (who died on 19th September, 1953 and in whose place his widow was substituted) refused the request of the plaintiffs for an amicable partition of the joint family assets and to give an account of the income and expenditure of the family assets. There were two sets of defendants and two sets of written statements were filed by them. On 10th April, 1954, the parties filed an application to refer the dispute to arbitration. On 21st July, 1954 the learned Subordinate Judge passed an order directing the office to send the papers to the umpire for submitting the award by 13th September, 1954 on filing the requisites at once. Probably, the word 'umpire' was used, because one of the two arbitrators appointed, namely, Babu Baijnath Prasad of Bairgania was described as Sarpanch and the other arbitrator, namely, Babu Ramchandra Prasad of Bairgania was described as Panch in the petition dated 10th April, 1954.

There was some delay by the parties in filing copies of pleadings and, therefore, on 13th September, 1954 the Subordinate Judge passed an order directing that the papers be sent to the arbitrators for submitting the award by 15th November. 1954. The next order dated 15th September, 1954 shows that the arbitrators filed an unstamped petition stating that they had no objection to decide the case, and then the Subordinate Judge issued the order of reference. As the award was not filed on the 15th November, the court below extended the time for submission of the same to 16th December, 1954, when time was further extended to 24th January, 1955. On this date, the plaintiffs filed a petition praying to reject the reference to arbitration and for fixing a date for the hearing of the suit. After hearing the lawyers for both the parties, the court again extended the time for submission of the award to 15th February, 1955. and a copy of that order was directed to be forwarded to the arbitrators. On 15th February, the arbitrators filed a petition praying for two months' time to file their award along with a yaka-latnama. The plaintiffs filed a rejoinder petition. After hearing the lawyers for the parties and the arbitrators, the court extended the time for submission of the award to 24th March, 1955. on which date the arbitrators again filed a petition praying for two months' time; and after hearing the lawyers for the parties, the court extended the time for submission of the award to 23rd May 1955.

There is no order in the order sheet from 23rd to 25th May 1955, and the next order is dated 26th May, 1965, when the award was filed. On that date, the plaintiffs also filed a petition praying to recall the writ from the arbitrators, as they had done no work; but the court directed the parties to file objection, if any, to the award by 27th June, 1955. on which date the plaintiffs filed objection and the same was heard and disposed of by the court below by the impugned order. It may be mentioned here that in the list of holidays for the civil courts in the State in 1955, 24th to 26th May were declared to be holidays on account of Id-ul-Fitr, subject to a note that if the moon be visible on 22nd May, then the holidays for Id-ul-Fitr would be from 23rd to 25th May. In view of the fact that there is an order dated 26th May and there is no order on 23rd May, it is apparent that the civil Court were closed on account of Id-ul-fitr from 23rd to 25th May, Mr. Balbhadra Prasad Singh, who appeared for the appellants, did not dispute this fact.

3. A large number of objections to the award have been taken by the plaintiffs appellants and all of them, except one, relating to the allotment of an area of 2 bighas 15 dhurs of Kasht land to Laljhari Kuer, were rejected.

4. In this court, Mr. Singh repeated almost all the objections and challenged the validity of the award also on the ground that it was not made by the arbitrators within the time allowed by the court, i.e., 23rd May, 1955. But before taking up this argument, it is necessary to dispose of a preliminary objection raised by Mr. S. C. Mukherji, learned Advocate for the respondents. He submitted that, in view of the composite order quoted above, the court prepared a final decree on the basis of the award and. 'therefore, though a first appeal might lie under Section 17 of the Arbitration Act, the present appeal under Section 39 (1) of the Act does not lie; and in support of this objection he relied on an observation in Tejpal v. Kedarnath, AIR 1939 Pat 597. In that case, an appeal had been preferred to the High Court by the defendants against an order modifying an award and the appeal lay under Section 104 (c) of the Civil Procedure Code, which was in force before the enactment of the Arbitration Act, 1940. Clause (c) of Section 104 gave a right of appeal from an order modifying or correcting an award. The power of the court to modify or correct an award was contained in paragraph 12 of schedule 2 of the Code.

With reference to these provisions, a bench of this court in the aforesaid case said that the scope of an appeal under Section 104(c) was a limited one, inasmuch as the party appealing could attack the order of the court only in so far as it modified the award, and it was clearly open to the party attacking the order to show that none of the conditions made in paragraph 12 of Schedule 2 applied and the award could not have been modified and Section 104 did not entitle a party to appeal against the award itself "nor can he in appeal under this provision attack the proceedings before the arbitrator after a decree had been passed on the basis of the award" Mr. Mukherji relied on the observation quoted above and submitted that, inasmuch at the decree had been passed on the basis of the award, no appeal under Section 39 (1) (vi) of the Arbitration Act could lie. But the aforesaid observation of their Lordships does not apply to a case where a composite order has been passed by court below refusing to set aside an award under Clause (vi) of Sub-section (i) of Section 39 of the Act. corresponding to Clause (f) of Sub-section (i) of Section 104 of the Code, and directing a decree to be made on the basis of the award.

A bench decision of this court in Sheo-cnaran v. Sanichar, AIR 1948 Pat

207. however, deals with the composite order of this kind. Their Lordships pointed out the distinction between an appeal against an order, as mentioned in Section 39 and an appeal against a decree, as mentioned in Section 17 of the Arbitration Act and sa,;d that there was no question of merger of the order in the decree. Their Lordships, therefore, held that such an appeal against the order, as mentioned in Section 39 did lie independently of an appeal under Section 17. In support of their decision, their Lordships relied on a decision of the Allahabad High Court in Jagat Pande v. Sarawan Pande. AIR 1925 All 404 and a decision of the Calcutta High Court in Saudamin Ghosh v. Gopal Chandra Ghosh, AIR 1915 Cal 745. A recent decision of the Allahabad High Court in Indian Minerals Co. v. N. I. L. M. Asscn., AIR 1958 All 692 also supports that view.

5. If the provisions of sections 17 and 39 were examined independently of the decisions, we arrive at the same conclusion. The scope of an appeal under Section 17 is very limited, inasmuch as it lays down that, when the court pronounces a judgment according to an award and upon the judgment so pronounced the decree follows, no appeal shall lie from such decree "except on the ground that it is in excess of" and "not otherwise in accordance with the award". The portions quoted indicate the limited scope of an appeal under Section 17. This limitation cannot, however, control the scope of an appeal under Sub-section (1) of Section 39 of the Act, which does not contain any limitation. If Mr. Mukherii's arguments were accepted, on account of a complete order passed by the court under Section 39, a valuable right of the party dissatisfied with such an order would be taken away and the object of the legislature in enacting Section 39 of the Act would be defeated. In view of the foregoing discussions, the preliminary objection raised by Mr. Mukherji fails.

6. Now, we shall take up the contentions raised by Mr. Singh. One of the contentions is that the award in question is a nullity, inasmuch as it was made by the arbitrator? beyond the time fixed by the Court, viz., 23rd May 1955 Paragraph 3 of the first schedule to the Arbitration Act, 1940 requires the arbitrator to make the award within a period of four months from the date of reference or within such extended time as the court may allow This schedule has been made in pursuance of Section 3 of the Act that an arbitration agreement, unless a different intention is expressed therein shall be deemed to include the provisions set out in the first schedule in so far as they are applicable to the reference Section 23(1) orovides that the Court, while making an order for reference to an arbitrator the matter in dispute, shall in the order specify such time as it thinks reasonable for the making of the award. Section 28(1) enacts that 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. Mr. Singh conceded that the time had been enlarged in this case for making the award by different orders of the court up to 23rd May. 1955. He also conceded that under Section 28 the enlargement of the time can be made by the court even after the making of the award.

But he submitted that there was no enlargement of time at all after 23rd May and the award in question was made, i. e., signed, on 24th May, 1955, and. therefore, it was not made within the time allowed by the Court. He further submitted that no application either was filed in court on 25th May, when the court reopened after Id-ul-Fitr holidays for extension of time and, therefore it could not be said that the Court extended time beyond 23rd May, either expressly or by. implication. In this connection, order No. 77 dated 26th May. 1955 passed by the Court is important. It reads thus :--

"Award filed. Plaintiffs file a petition praying to recall the writ from the arbitrators as thev have done no work. Parties to file objection to the award, if any by 27-6-55."

In our opinion, the last sentence of this order is sufficient to show that the court extended impliedly, the time for making the award beyond 23rd May, and, therefore it directed the parties to file obiection. if any, otherwise, the court would have simply refused to take notice of the award and would have merely ordered it to be kept on record. It must, therefore, be held that the award was made by the arbitrators within the time allowed by the court and the contention of Mr. Singh must fail.

7. Another contention of Mr. Singh was that the plaintiffs had neither notice of the actual sittings of the arbitrators nor did the arbitrators hold any sitting at all for the purpose of the arbitration entrusted to them. This, according to Mr Singh, amounts to misconduct on the part of the arbitrators. as contemplated by Section 30 of the Act He does not dispute the fact that the plaintiffs appellants had knowledge of the reference to arbitration of the court as also the fact as to who were the two arbitrators. Arbitrator Ramchandra Prasad is the brother-in-law i. e., the husband of the sister of plaintiff No. 1. The other arbitrator, Baijnath Prasad is the brother-in-law of defendants 2 and 3. The elder brother of Baijnath Prasad is also the brother-in-law of these two defendants. The case of the defendants respondents is that the arbitrators sat at the darwaza of the parties for the purpose of arbitration on several days and that they also went to the spot to partition the different fields by metes and bounds. The case of the plaintiffs appellants, however, is that there was no sitting at all at the darwaza and no notice of the sittings was given to them, nor did the arbitrators go to the fields.

11. (After discussing evidence in Paras 8 to 10 their Lordships proceeded;) In view of the foregoing discussions, we agree with the court below and hold that the parties had notice from the arbitrators of the sittings at the darwaza and the arbitrators did actually sit at the darwaza on different occasions and partitioned all the moveables there, while they divided the lands on the spot by metes and bounds with the help of the Amin by going to the spot along with the parties.

12. The other objections on behalf of the appellants relate to the omission to divide the dues on handnotes and account books as also the omission to divide the cloths of the shop alleged to belong to the ioint family of the parties. It appears that before the reference to arbitration, the court below got an inventory of some moveables prepared by a pleader commissioner. This inventory included a large number of handnotes. Admittedly, these handnotes were not divided between the parties by the arbitrators. In court the deposing arbitrator has said that they did not divide the handnotes, because thev were all time-barred. We have seen these handnotes in original. Only a few of them bear dates and they were all time-barred before the institution of the suit. Some of the handnotes do not bear any date and the others contain only thumb impressions with the names of the persons whose impressions are there. Mr. Singh laid much stress on the fact that, under the law. only the remedy in court is affected on account of a handnote becoming time barred, but the debts exist and an honest debtor could repay the same.

The defendants said in court below, and they repeated the offer in this court as well, that the plaintiff? may take all the handnotes m their share without making any compensation for the same. The deposing plaintiff, however, said in cross-examination that he was not prepared to take these hand-notes, as they were time-barred. Then, another question was put to him as to whether he was prepared to take all the articles sealed in the room by the pleader commissioner and the old bahi khatas and the handnotes. of which inventory had been made; but he did not answer this question. Regarding the account books, the deposing arbitrator has said that inasmuch as the transactions in the old account books had been advanced in the current account books, the arbitrators did not consider it necessary to examine the account books and they effected the partition and gave their decision with reference to the current account books. It is true as was submitted by Mr Singh, that the arbitrators did not inspect the handnote:- referred to above, but it was not necessary to do so, because the parties did not attach any importance to the same on account of their being time-barred and did not apparently bring to the notice of the arbitrators the fact that there were valuable handnotes kept in the room sealed by the court below, it cannot be said that there was any misconduct on the part of the arbitrators on account of their failure to inspect these documents.

13. Regarding the division of the cloth in the cloth-shop, the court below has said that the statement of the arbitrators in the award that no cloth was found to be joint clearly means that they considered this cloth-shop to be the exclusive property of defendant No. 3, as was claimed by him. That is corroborated by the last sentence of paragraph 8 of the award and the evidence of D. W. 9. who said that the cloth-shop was given to defendant No. 3, while the grain-shop was given to the plaintiffs. It is apparent, therefore, that the arbitrators did apply their mind to the claim of the plaintiffs in respect of the cloth-shop. This objection must, therefore, be rejected.

14. Tht next objection was in respect of the allotment of 2 bighas 15 dhurs of kasht land to Mosammat Ramjhari Kuer, also known as Laljhari Kuer. It was urged in the court below that, inasmuch as she was not the daughter of Thakur Prasad as alleged by the contestine defendants, she was not entitled to any share or maintenance from the family properties. For this reason, the court below has excluded this area of land from the award and. as agreed to by the lawyers for the contesting defendants, it was decided by that court that the plaintiffs might take this area of land and to that extent the award was modified. Mr. Singh submitted that this allotment to Ramjhari Kuer indicated misconduct on the part of the arbitrators and. therefore, the entire award was liable to be set aside: but we are unable to agree with him He further submitted that the allotment to Ramjhari Kuer and the other allotments were inextricably related to the entire subject-matter of the suit and the infirmity attaching to this portion of the allotment would affect the entire award, but it is manifest from what has been stated earlier that this allotment to Ramihari Kuer cannot disturb the other allotments, particularly when the defendants had forgone this area of 2 bighas and odd in favour of the plaintiffs This objection, therefore, fails.

15. The last argument of Mr. Singh was that the fact that the handnotes had become time-barred could not absolve the arbitrators from inspecting the same, because they became so barred on account of the carelessness of the original defendant No 1, and It was the duty of the arbitrators to take accounts and compensate the plaintiffs for the loss to the family resulting from this carelessness. But there is no claim in the plaint for compensation or accounting in respect of the handnotes. Of course, in relief (a) the plaintiffs have claimed an account of the entire income and expenses of the joint family properties from defendant No. 1 for the purpose of finding out the assets of the joint family; but the arbitrators have considered this relief in paragraph 10 of the award. There is, therefore, no substance in this contention either.

16. In the result, the appeal is dismissed with costs. Hearing fee is assessed at Rs. 64.00.