P.D. Kudal, J.
1. This is a civil miscellaneous appeal under Section 39(6) of the Indian Arbitration Act, 1940 against the order of the learned District Judge, Jaipur City, dated July 7, 1972, whereby the application filed by the appellant under Section 33 of the Indian Arbitration Act was dismissed.
2. On behalf of the respondent a preliminary objection was raised that an appeal under Section 39(6) of the Indian Arbitration Act is not maintainable against an order rejecting the application under Section 33 of the Indian Arbitration Act, refusing to invalidate the agreement for arbitration.
3. The appellant filed an appeal before this Court on August 14, 1972. The award was passed by Shri Damodar Pandaya on June 16, 1970, against which no application was made by the appellant before the learned District Judge under Section 30 of the Indian Arbitration Act to set aside the award, and thus, the award became final. The validity of the award is now being challenged in this appeal.
4. The question before us is, whether the validity of the award can be challenged in this appeal. We may here mention that on November 22, 1972, the Court passed as order directing the learned District Judge not to make the award a rule of the Court without express permission from this Court.
5. The earned Counsel for the appellant, however, stated that as he held already challenged the very validity of the agreement for arbitration, the further proceedings, which were in pursuance of the agreement, would, be null and void, He further contended that under the facts and circumstances of the case, the award was rendered nullity as it preceded on a void agreement for arbitration. The principles of law embodied in Sections 30 and 33 of the Indian Arbitration Act have been now well settled in view of the decision of the Calcutta High Court in Saba and Co. v. Ishar Singh AIR 1956 C.I. 321. It was contended that the two Sections 30 and 33 overlap inasmuch as that the invalidity of arbitration agreement or award could be challenged without an application under Section 30, but may be made a ground for setting aside the award under Section 33 Toe majority view reflected by S.R. Das Gupta J. is the above decision may be stated thus:
I do not consider that view to be sound. It is true that Section 33 provides for a separate arid independent challenge to an arbitration agreement. If no arbitration proceedings have yet been had no award has been made, a party may undoubtedly challenge an application made to the Court.
But I am of opinion that after an award has been made, a party, if be desires to challenge the validity of an arbitration, agreement, can make his challenge only by way of advancing it as a reason for impugning the award as invalid. No independent application against the agreement would at that stage is maintainable. It follows that if a patty desiring to challenge an arbitration agreement bas not done so by way of asking the award to be set aside on that ground and has allowed a decree to be passed on the award, cannot thereafter launch an attack against the agreement.
The true view to take appears to me to be that after an award has been made, all grounds of objection to the award, including grounds of the nor-existence or invalidity of the agreement or reference and all other grounds of nullity must be taken in an application for setting aside the award and that no ground, net so taken, can be available after the time for making such an application has expired. All grounds not so taken must be deemed to have been waived.
6. A similar view was taken by Hon'ble Chakravartti C.J. The judgment of Hon'ble P.B., Mukherji J is a lucid exposition of the real scope of Sections 30 and 33 of the Indian Arbitration Act, and supports this very view.
7. We are in respectful agreement with the majority view taken in this connection. If no application is made to set aside the award under Section 39(6) of the Indian Arbitration Act no appeal lies under Section 39(6) of the Indian Arbitration Act against an order rejecting an application under Section 33 of the Act for setting aside the award on the ground of invalidity of the agreement. This view has been further supported in Basant Lal v. Surendra Prasad : AIR1957Pat417 .
8. Under these circumstances, we uphold the preliminary objection raised en behalf of the learned counsel for the respondent that no appeal lies under Section 39(6) of the Act against an order rejecting the application under Section 33 of the Act.
9. At the request of the earned Counsel for the appellant, this appeal be treated as a revision and be placed before a Single Bench for disposal according to law.
10. The costs shall abide the result of revision petition. The stay order issued on November 22, 1972 is hereby vacated.