1. The matter in dispute in O.S. No. 57 of 1943 was referred to arbitrators and an award was filed on 21st November, 1944. On that date, the Court posted the suit For objections to 2nd December, 1944. On the adjourned date, the defendants filed objections ; but the plaintiff was satisfied with the award and filed none. It was then posted for enquiry to 11th January, 1945. On that date, a preliminary objection was taken by the plaintiff that the objections of the defendants could not be heard ; because under Section 33 of the Arbitration Act the Court was bound to pass a decree in terms of the award, unless a party applied to the Court to have the award set aside. The learned Subordinate Judge upheld this objection, rejected the objections filed by the defendants, and passed a decree in terms of the award.
2. It is not denied in this Court that the appellants should have filed an application to set aside the award ; but they can reasonably say that they were misled by the order of the Court on 21st November, 1944, posting the suit to 2nd December, 1944, for objections. In substance, the objections of the appellants amounted to an application to the Court to set aside the award. They headed the objections ' objections 'filed by the second defendant on the award.' They then set cut various grounds on which, they considered, the Court should set aside the award. In paragraph 13 they stated, ' the award of the arbitrator may therefore be set aside.' Not only were the objections of the appellants in substance an application to set aside the award, but it was almost so in form. If an application had been filed as required by Section 33 of the Arbitration Act, the second defendant would have headed his application ' application under Section 33 of the Arbitration Act' instead of ' objections filed by the second defendant on the award.' He would have stamped his application and would have said in paragraph 13 of his application, ' It is therefore prayed that this Honourable Court will be pleased to set aside the award of the arbitrators ', instead of' the award of the arbitrator may therefore be set aside.' We feel that since the mistake made by the second defendant was to a large extent due to the order passed by the lower Court, the lower Court should have overlooked this irregularity ; for it was nothing more than an irregularity.
3. The learned advocate for the appellants has drawn our attention to two cases in which the Court was prepared to overlook an irregularity in the form of the application. In Gopalji Kallianji v. Chhaganlal Vithalji I.L.R.(1920) 45 Bom. 1071 where there shoulu have been an application to set aside the award, there was only an affidavit. In Deokinandan Dalmia v. Basantlal Ghanshyamdas I.L.R. (1941) Cal. 123 the learned Judge, sitting on the original, side, was prepared to treat a plaint filed in a suit that was not maintainable as an, application. We also feel that the irregularity committed by the appellants was not such as to entitle the Court to overlook their objections and to pass a decree in terms of the award.
4. The appeal is therefore allowed, the order of the lower Court set aside, and the Court ordered to hear the objections of the appellants after giving notice to the other side. As the difficulty is in part due to the fault of the appellants, there will be no order as to costs.