Govinda Menon, J.
1. A preliminary objection is taken by the respondent that the order appealed against is not one which comes within the purview of Section 39(1)(vi) of the Arbitration Act. But Mr. Viswanatha Ayyar for the appellant relying on the authority of the decision in Jagadish v. Sundar I.L.R. (1943) Pat. 86, contends that the dismissal of I.A. No. 478 of 1951 is tantamount to setting aside the arbitration award as contemplated by Section 39(1)(vi) of the Arbitration Act. The correctness of this contention will be examined after stating the facts of the case.
2. The original appellant in this Court was the purchaser of certain properties over which the respondent had two mortgages and on account of disputes arising between them with regard to the exact amount due to the respondent the matter was referred to arbitration. The arbitrators after looking into the papers and hearing the parties gave their award on 15th May, 1947. On 18th May, 1947, the original appellant herein filed O.P. No. 55 of 1947 under Sections 14 and 17 of the Arbitration Act requesting the Court to direct the arbitrators to file the award into Court and to pass a decree in terms of the award. It is stated that notice of this application was ordered to the respondent. But the return of the process-server on both occasions was that the respondent refused to accept service. Consequently on 7th November, 1947, a decree was passed incorporating the terms of the award. Nothing was done for sometime but on 14th December, 1949, the respondent applied to the Court for copies of the notice alleged to have been sent to him and stated to have been refused by him as well as the ex parte order passing a decree in terms of the award. He also applied for setting aside the ex parte order.
3. I.A. No. 52 of 1950, filed on 19th December, 1949, for setting aside the ex parte order was disposed of on 10th March, 1951. The Court held that there was no service of notice on the respondent and consequently the ex parte order was set aside. The result of the order, dated 10th March, 1951, was that O.P. No. 55 of 1947 was to be restored to file and heard on merits. While matters were in this state, on 12th March, 1951, the original appellant filed I.A. No. 478 of 1951 stating that since the respondent had notice of the passing of the award on 14th December, 1949, when he applied for copies of the notice it should be deemed that he had notice of the award and not having taken any steps to apply to the Court to have the award set aside the Court should automatically pass a decree in terms of the award. The lower Court has dismissed that application and that is the subject-matter of the appeal. On 3rd April, 1951, the respondent filed I.A. No. 610 of 1951 to set aside the award under the provisions of Sections 17 and 33 of the Arbitration Act.
4. The question for consideration now is whether the dismissal of I.A. No. 478 of 1951, is an order which is liable to appeal. Mr. Visvanatha Ayyar for the appellant contends that the lower Court's refusal to hold that the respondent had notice of the passing of the award on 14th December, 1949, is tantamount to setting aside the award because if the award remains, automatically under I.A. No. 478 of 1951 a decree should be passed. For that contention he relies on the observations of Reuben, J., in Jagdish v. Sundar I.L.R. (1943) Pat. 86. We do not think that the facts of that case or the points in controversy are ad idem to what we have to decide. Had it been the case whereby the dismissal of I.A. No. 478 of 1951 there was a quietus or finality to the proceedings before the lower Court and thereby the award became useless by a decree not being passed upon it probably we might have held that such an order is appealable: but in view of the restoration of O.P. No. 55 of 1947 the Court has here after to decide whether notice of the application had been given to the respondent and then pass a decree in terms of the award. Therefore the question of passing a decree in accordance with the terms of the award or refusing to pass a decree, thereby setting it aside is still the subject-matter pending before the lower Court in which the original appellant was the petitioner. Moreover I.A. No. 610 of 1951 is by the respondent to set aside the award. The Court has to find out whether there was a valid award and whether notice had been given to the respondent. These two applications, namely O.P. No. 55 of 1947 and I.A. No. 610 of 1951 are inter-related and inter-connected and should be heard and disposed of together for if O.P. No. 55 of 1947 is allowed, then automatically I.A. No. 610 of 1951 has to be dismissed and vice versa if LA. No. 610 of 1951 is allowed, O.P. No. 55 of 1947 has to be dismissed. Therefore, the lower Court will have to decide these two matters on merits after taking evidence. When therefore, the question as to whether a decree should be passed in terms of the award or the award has to be set aside is pending adjudication before the lower Court, it cannot be said that there is any order by which the award has been set aside in I.A. No. 478 of 1951. Such being the case we hold that the provisions of Section 39(1)(vi) of the Arbitration Act are not attracted and therefore no appeal lies to this Court. It is open to the appellant to raise if so advised, the contentions which he has raised in I.A. No. 478 of 1951 as petitioner in O.P. No. 55 of 1947 or as respondent in LA. No. 610 of 1951, and they will be heard along with the other evidence and objections which the parties may adduce or raise. The appeal is, therefore, dismissed. There will be no order as to costs.