1. This seems to be an unfortunate case. It was filed as a second appeal and a date was fixed for hearing under Order 41, Rule 11 of the Code of Civil Procedure. The case came before Sulaiman, J., for admission. The learned Judge recorded the opinion that the appeal could not be admitted, but the memorandum of appeal might be treated as an application in revision. Accordingly, he ordered that notice should go to the opposite party. To-day the applicant (appellant) and the opposite party (the respondent) are both before me; and for the latter Mr. Bajpai takes a preliminary objection that no revision lies. To appreciate the point it will be necessary to go to some extent into the facts of the case. The suit was filed by the applicants before one Sahdeo Singh and others for recovery of rent in a revenue Court. The dispute was referred to arbitration and an award was made. An application was filed, contesting the award, by the plaintiffs. The learned Assistant Collector refused to consider the objections and purported to make a decree in accordance with the award. An appeal was taken to the learned District Judge and he held that no appeal lay to him. Then a second appeal was filed.
2. In the case of Kehri Singh v. Thirpal : AIR1926All113 , Sulaiman and Boys, JJ., held that a revision did lie, in certain circumstances, from a case in which the original suit was cognizable by the revenue Court alone. In a recent yet unreported case, Bhagwan Das v. Chedi Lal Koeri : AIR1926All398 a Bench of three Judges of this Court held that no revision lay in the circumstances of a case which were more or less similar to the case before me. Mr. Bajpai takes his stand on this and argues that no revision lay.
3. On the other hand Mr. Baleshwari Prasad contends that his case was originally an appeal and it ought to have been admitted as a second appeal. By implication he challenges the correctness of the order of Sulaiman, J. Mr. Bajpai contends that the order of Sulaiman, J., dated the 24th of March 1926, in this case is final and cannot be interfered with. I am not quite certain that such is the case. The matter is still pending before this Court and it would be always open to a Judge to say that an intermediate order passed by him at an earlier stage of a pending case was erroneous. In my opinion it would be still open to Sulaiman, J., himself to say, if he were hearing this revision, that an appeal did lie and he was prepared to hear the case as a second appeal.
4. Mr. Bajpai, however, says that he is not prepared to argue the two new features that have arisen just at present, viz., whether it is open to me to treat the case as a second appeal in spite of Sulaiman, J.'s order to the contrary and, secondly, whether a second appeal would lie. It appears that Mr. Bajpai's client was never aware that originally the case was filed as a second appeal. In the circumstances I adjourn the case for further arguments. The case may come up on the 4th of June when probably I shall again be sitting alone hearing Company cases.
5. This revision came before me once and, for reasons recorded on the 28th of May 1926, I proposed to treat it as a second appeal, in which form it was originally filed. The learned Counsel for the opposite party had intimated to me that he had not sufficient opportunity to consider this aspect of the case and the case was adjourned. To-day I have heard the learned Counsel, who holds the brief for the respondent's original counsel, and I have come to the conclusion that the revision must be treated as a second appeal and the second appeal must be allowed.
6. The facts involved are very simple and are given in my previous order. They need not be reiterated.
7. As award must be an award in accordance with the provisions of Paragraph 16, Clause 1 of Schedule 2 in order that a decree passed upon it may not be appealable.
8. This is perfectly clear from the language used in Clause 2 of Paragraph 16. The words are 'upon the judgment so pronounced.' The words 'so pronounced' imply that the award should be one contemplated by Clause 1 of Paragraph 16. That clause contemplates an award with respect to which, if an application for its setting aside has been made, the application has been considered and refused. In this particular case an application to set aside the award was made, but was never considered by the learned Assistant Collector and therefore the award could not be the basis of an unappealable decree. This was decided so long ago as in the year 1896 in Ibrahim Ali v. Mohsin Ali  18 All. 422 by a Bench of six Judges of this Court. The same opinion was expressed in Nazm-ud-din Ahmad v. Albert Puech  29 All. 584. It is true that the Civil Procedure Code underwent a substantial change in the year 1908 after those rulings were given. But there has been no substantial difference in this portion of the law. As recently as on the 24th of April 1926, a Bench of two Judges in First Appeal No. 479 of 1922, Tursi v. Basdeo : AIR1926All567 , decided the same thing, viz., an award must be in conformity with Clause 1 of Paragraph 16 of Schedule 2 of the Civil Procedure Code in order that a decree passed on it might be un appealable.
9. The result is that the decree passed by the Assistant Collector was appealable to the District Judge and the District Judge's decree is appealable to this Court.
10. I set aside the decrees of the Courts below and remand the case through the lower appellate Court to the Court of first instance for hearing of the objections preferred by plaintiffs and dispose of them according to law. The costs here and hitherto will abide the result.