P. B. Mukharji, J.
1. This appeal is a sequel to the appeal which I have Just disposed of being Appeal No. 88 of 1959. The appellant Union of India in this case has appealed from the decree which the learned Judge pronounced on the award, which was sought to be set aside in the other appeal.
2. An important question on the competence or this appeal has been argued before us. There are seven grounds of appeal in this appeal. The first two grounds actually say that the learned Judge was wrong 'in pronouncing judgment according to the award.' and making 'a decree in terms of the award'. The third, fourth and the fifth grounds urge that the learned Judge was wrong 'in not setting aside the award'. The sixth ground says that the grounds of appeal mentioned in Appeal No. 88 of 1959 which has been just disposed of by us are to be treated as grounds of appeal in this case, or in other words, grounds for setting aside the appeal should be treated as grounds for setting aside the decree made on the basis of the award. The seventh ground just challenges the decree as 'being otherwise erroneous'.
3. Now we are satisfied that these grounds are not competent grounds of appeal in this case. This appeal is preferred tinder Section 17 of the Arbitration Act of 1940. The relevant portion of Section 17 of the Arbitration Act of 1940 makes it quite clear that
'......... .no appeal shall lie from such decree except on the ground that it is in excess of or not otherwise in accordance with, the award.'
4. In the preceding portion of Section 17 of the Act It is expressly mentioned that the Court has first to see that there is no Clause (1) to remit the award or any of the matters referred to arbitration for consideration or (2) to set aside an award and (3) then shall allow the time for making an application to set aside the award to expire or (4) the Court must see that the application haying been made has been refused. When these tour conditions are satisfied Section 17 lays down, that the Court shall 'proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow''.
5. A perusal of Section 17 of the Arbitration Act of 1940 shows that the two grounds on which appeals are permitted from the decree or judgment according to the award are-- (1) when the decree is in excess of or (2) not otherwise in accordance with the award. To use this section as a general right of appeal to challenge awards on other grounds does not appear to be justified. The Scheme of the Arbitration Act is that awards can be challenged under Section 33 of the Act. In fact it was so challenged in this case and such challenge to the award failed. From an order under Section 33 an appeal is expressly provided by Section 39 of the Arbitration Act which says--
'An appeal shall lie from the following orders passed under this Act (and from no others)....... .'
6. Among the orders that follow under Clause (vi) is an order either setting aside or refusing to set aside an award. The combined effect of the words 'and from no others' and that 'an appeal shall lie from an order setting aside or refusing to set aside an award' is that the Act did not intend other appeals to challenge the award. When Section 39 is read with Section 17 of the Act It becomes clear that when the stage of challenging awards has passed and when other conditions specified under Section 17 have been satisfied the court has to pronounce judgment in accordance with the award. Naturally, therefore, the only ground of appeal against a decree under Section 17 is when the decree itself goes either in excess of or is not in accordance with the award. None of the grounds taken here comes within the limits of Section 17 of the Act. The grounds of appeal in this case do not suggest that the decree is either in excess of or not in accordance with the award. In fact, on the contrary, the grounds of appeal urge that the decree is in terms of the award which is bad. That is clearly not entertainable under Section 17 of the Arbitration Act. To permit under Section 17 of the Arbitration Act a ground of appeal which goes to challenge an award on the very same ground on which an application to challenge an award under Section 33 has already failed is, in my opinion, barred both by the Express language of the conditions mentioned in Section 17 of the Act as well as by Section 39 of the Act, To permit such an appeal will be to invent something which is not in , the Act. It must be emphasised that the right of appeal is statutory. There is no right of appeal by implication or Inference or by common law. In addition it must be kept in view that the present Arbitration Act of 1940 is not merely an amending Act but also a consolidating Act as its preamble expressly makes it clear.
7. On this branch of the subject reference was made to the Full Bench decision of this Court in Saha and Co. v. Ishar Singh Kripal Singh and Co. reported in : AIR1956Cal321 (FB), and specially the observation that I had made there at pages 519 525-32 (of Cal WN) : (at pp. 339, 341-345 of AIR). Before the Arbitration Act, 1940 under the Civil Procedure Code there was a similar provision as the present one in the Arbitration Act of 1940. But even then an appeal was permitted from the decree on the ground that the award proceeded on the invalid reference to Arbitration. This was the case of Golnur Bibi v. Abdus Samad : AIR1931Cal211 . But the instant appeal before us is not one on the ground of invalid reference. That case is also to be distinguished on the ground that there was then no consolidated Arbitration Act. On the general aspect of this point, reference has also been made to cases where appeals were permitted against what are called composite orders, viz. in one order refusing to set aside an award and passing a decree on the basis of the award such as Mt. Ishwar Dei v. Chhedu : AIR1952All802 , Khettra Nath v. Ushabala Dasi, reported in 18 Cal WN 381 : (AIR 1914 Cai 699). In the latter case a Division Bench of this Court holds that an appeal lies against an order filing an award made upon an arbitration without the intervention of the Court even after a decree is passed upon the award and goes on to adjudge that the decree passed upon the award is no doubt final if it is in accordance with the award. But the validity of the decree depends upon the validity of the order directing the award to be filed and if the latter is set aside the decree must be declared inoperative. These two cases are on composite orders against one part of which appeal admittedly lay. But the present appeal is not against any such composite order. A reference was made also to the decision of a single Judge in the case of Scottish Union and National Insurance Co. v. Sm. Saraswati Sajnani : AIR1960Cal22 . That decision, however, does not deal with the right or competence of appeal on the specific grounds to which appeals are limited under Section 17 of the Arbitration Act. Although prior to the Arbitration Act 1940, yet the decision of the Division Bench of this Court in Scudamini Ghosh v. Gopal Chandra Ghosh reported in 19 Cal WN 948 ; (AIR 1915 Cal 745), on arbitration under the Civil Procedure Code is relevant. It lays down in the first instance that the right of appeal against an order directing an award to be filed is not lost as soon as the decree is drawn up in accordance with the judgment pronounced on the basis, of the award. The order does not merge in the decree. Secondly, it lays down the proposition, that it is competent for a court setting aside an order directing an award to be filed to declare that the decree based on the award has been vacated because the order on which it was based has been cancelled. Technically this proposition is not an authority in favour of a general right of appeal against the decree on the award on any ground whatsoever. All that it says is that the Court setting aside an order directing the award to be filed may declare the decree based on the award is vacated. The point before us is right of appeal under Section 17 of the Arbitration Act on grounds other than the two mentioned in that section.
8. The other relevant decision of this court is Bholanath Chatterjee v. Chandra Sekhar Bhattacharjee reported in : AIR1950Cal53 where G. N. Das, J. holds that an appeal lies against the decision overruling objections to the filing of an award under Section 39(1)(vi) of the Arbitration Act and holding that the fact thai by the same order the court also directed a decree to be passed in terms of the award does not take away the right of the aggrieved party to file an appeal in accordance with the provisions of Section 39 of the Act. This again is a case of composite order, with which the present appeal is not concerned.
9. In Sheocharan Mahton v. Sanichar Mahton reported in AIR 1948 Pat 207 Imam, J. at page 208 with whom Agarwal, Ag. C. J. agreed, clearly pointed out the significant distinction by the following observations at page 208--
'The provisions of Section 17 merely state that, where a court refuses to set aside the award, it shall pronounce judgment in accordance with it with a decree following, and no appeal shall lie against such a decree. There is, therefore, a clear distinction between an appeal against an order as mentioned in Section 39 and an appeal against a decree as mentioned in Section 17. The question of merger does not arise, in my opinion, and, for this proposition one may refer to the decision of the Allahabad High Court in Jagat Pande v. Sarawan Pande : AIR1925All404 and to the decision of the Calcutta High Court in 19 Cal WN 948 : (AIR 1915 Cal 745)'.
10. Lastly, it may be recalled that the form of the decree in this case is in the usual form of decree on the Original Side--
'It is declared that the said award ought to be carried into effect and the same is ordered and decreed accordingly.'
Therefore, if the award is set aside on an application under Section 39 of the Arbitration Act or in appeal then it cannot be that the decree which directed the award to be carried into effect remains operative, because no award remains to be carried into effect. In other words even if the decree remains there technically, nothing is left for execution under such a decree. If such a decree therefore is attempted to be executed it always remains open to the objection that the award on which it was based has been set aside and there is nothing left to execute.
11. It will be unnecessary for us to discuss or decide the broader and general question whether independently of Section 17 and Section 39 of the Arbitration Act, there is any other right of appeal because this being only an appeal under Section 17 of this Act, such broader question does not arise in this appeal. It is enough for us to say here on the facts of this case that the present grounds of appeal in this case are not grounds permitted by Section 17 of the Arbitration Act read with Section 39 thereof.
12. Finally, as we have already dismissed the appeal from the order refusing to set aside the award, it must follow that this appeal from the decree based on the award must also fail.
13. The appeal is dismissed with costs.
N.K. Sen, J.
14. I agree.