Raj Kishore Prasad, J.:— This is an appeal against an order dated 2-3-1950, of Mr. B.P Pandey, Second Additional Subordinate Judge at Darbhanga, refusing an application made by the appellant under O. 9, R. 13 and Section 151 of the CPC for setting aside a decree passed on an award.

2. In order to appreciate the points, which have been placed before us, it is necessary to state a few facts. The appellant, who was a minor, was defendant 17, and his father, defendant 16, in a partition suit filed by the respondents against them and several others. Sri Jugal Kishore Choudhury, a pleader, was appointed guardian ad litem for the appellant in the court below. On 16-9-1941, Ramjatan Singh, the father of the appellant, made an application to the Court below, asking for the discharge of the Pleader guardian ad litem and for his own appointment in his place, and also for permission to join the reference to arbitration. On that date another petition was also filed by the parties jointly for reference to the arbitration of the persons named therein. The petition for reference to arbitration was for some defects rejected, but the application for discharge of the guardian ad litem remained pending as no order was passed on this petition. Thereafter, on 18-9-1941, all the parties filed a fresh petition praying to refer the case to arbitration of the persons named therein.

3. The court on the same day referred the suit to arbitration. The arbitrators filed their award on 17-12-1941, and the award was confirmed on 2-1-1942. A notice of the filing of the award was given to all the parties concerned. In pursuance of the notice, Ramjatan Singh, the father of the appellant, on 5-1-1942, filed a petition under Section 30 of the Arbitration Act, 1940, making certain objections against the award. On 20-6-1942, the award was, however, set aside, because it had been confirmed within thirty days.

4. Thereafter, on 27-7-1942, Ramjatan Singh filed fresh objections to the award which were, however, rejected, but on appeal this Court directed that the petition of Ramjatan Singh filed on 5-1-1942, should be treated as an application under Section 30 of the Arbitration Act. These objections, however, later on were rejected on 4-7-1946. Thereafter, the father of the appellant having failed in his attempt to get the award set aside, sat right over the matter and then on 14-4-1949 the present application was made by the present appellant, through his mother as guardian, objecting to the award.

5. This application purported to be under O. 9, R. 13, as well as under Section 151 of the CPC. It was conceded in the Court below that O. 9, R. 13, did not apply and, therefore, the application was pressed under Section 151 of the CPC. This application was, however, rejected by the Court below on 2-3-1950, and the present appeal has been preferred against this order.

6. A preliminary objection to the maintainability of the appeal has been taken by the learned Advocate-General, who appears for the respondents. His objection is that as the appellant conceded before the Court below that O. 9, R. 13, did not apply to the case and pressed his application under Section 151 of the CPC treating his application thereunder and as there is no appeal against an order passed under Section 151 of the CPC therefore, the present appeal is not maintainable.

7. Mr. Sanyal, appearing for the appellant, has urged in reply to this preliminary objection two points: (1) that the application of the appellant filed on 14-4-1949, should be considered as an application under Section 30 of the Arbitration Act, and, therefore, an appeal would lie against such an order under S. 39 of the Act; (2) Alternatively, he has argued that if Section 30 of the Arbitration Act, does not apply, then in that case his application should be treated as an application under O. 9, R. 13 of the CPC and, therefore, an appeal would lie against such an order.

8. Mr. Sanyal has also argued on the merits of the case and his contentions on the merit are twofold: first, that there has been no compliance of O. 32, R. 7, inasmuch as express leave of the Court has not been granted for reference to arbitration and reasons also have not been given by the Court for doing so; secondly, he has argued that O. 32. R. 5, has also not been complied with inasmuch as the guardian ad litem has not been discharged. I propose to deal with the preliminary objection first, and thereafter I shall deal with the merits of the case.

9. In my opinion, preliminary objection of the learned Advocate-General is well founded and must be given effect to for the reasons I am giving hereafter.

10. The first contention of Mr. Sanyal in reply to the preliminary objection, is that his application should be considered to be one under Section 30 of the Arbitration Act, and, therefore, an appeal would lie under S. 39 of the Act. Section 30 of the Arbitration Act requires an objection to be filed under Article 158 of the Limitation Act, within thirty days from the date of service of the notice of the filing of the award. Admittedly no such objection was made by the appellant.

11. His father did file an objection under S. 30, but it was rejected. There is no specific averment in his petition filed on 14-4-1949, that the notice of the filing of the award was not served on him or his guardian as required by S. 14, cl. (2). Notice of the filing of the award, as stated before, was given to all the parties concerned and their lawyers did put their signatures on the order sheet in token of having received the notice.

12. The father of the appellant filed an objection, but no such objection was filed on behalf of the appellant. It is impossible, therefore, to accept the contention of Mr. Sanyal that his application should be considered to be an application under Section 30 of the Arbitration Act, so as to give him a right of appeal under S. 39 of the Act.

13. The second contention of Mr. Sanyal, which he has urged alternatively, is that his application should be treated as an application under O. 9, R. 13, and, therefore, an appeal would lie under O. 43, R. 1(d) of the CPC. It will appear that in the Court below it was conceded by the appellant's lawyer that O. 9, R. 13, did not apply to the present case.

14. On an examination of the law on the point it would be clear that it was rightly conceded. Order 9, Rule 13, contemplates a decree passed ‘ex parte’, when the plaintiff appears and the defendant does not appear when the suit is called on for hearing. The Court has got the power under O. 9, R. 6, in such circumstances to proceed ‘ex parte’, and if the Court proceeds ‘ex parte’ in such a case, then the decree passed in such circumstances would be called an ‘ex parte’ decree within the meaning of R. 13 of O. 9 of the Code; and one of the remedies provided for getting such a decree set aside is by an application under O. 9, R. 13 of the CPC.

15. In the present case there is no question of an ‘ex parte’ decree at all. An award was given by the arbitrators on a reference by all the parties concerned, and the Court under Section 17 of the Arbitration Act, has got the power to pass a decree in terms of the award. Section 17 reads thus:

“Where the Court sees no cause to remit; the award or any of the matters referred to arbitration for reconsideration or to set aside the award the Court shall, after the time for making an application to set side the award has expired, or such application having been made after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and 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”.

16. It will appear from this that when the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award, the Court is bound, after the time for making an application to set aside the award has expired, of after such an application has been made and refused by the Court, to proceed to pronounce judgment in accordance with the award, and upon the judgment so pronounced a decree follows as a matter of course.

17. Section 17 further provides 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. It is not the appellant's case that the decree is either in excess of or not otherwise in accordance with the award.

18. Therefore, it is obvious that no appeal could lie against a decree passed in accordance with the award. An appeal is provided against an order passed under O. 9, R. 13. Under O. 43, R. 1, cl. (d), an appeal lies when an order under R. 13 of O. 9 is passed rejecting an application but only in a case open to appeal. Therefore, even if it be assumed that application was under O. 9, R. 13, an appeal would not lie against an order rejecting it because there could be no appeal against the decree passed in terms of the award under Section 17 of the Arbitration Act.

19. This point is covered by a Division Bench decision of this Court in — Raghunath Rai Dilsuk Rai v. Bridhi Chan Sri Lal*’, AIR 1924 Pat 603 (A). The facts of that case are very similar to the facts of the present case, and the point which arises in the present appeal also arose in that appeal and there it was laid down that there is no appeal from an order refusing to set aside, under O. 9, R. 13 of the CPC, a decree passed in the absence of the defendants in terms of an award made in an arbitration with the intervention of the Court.

20. In the present case the contention of Mr. Sanyal is that the decree should be considered ‘ex parte’, because although the present appellant was a party to the proceeding, yet as he was not properly represented by a guardian ad litem, he should be considered as no party at all. Mr. Sanyal has relied upon the decision of a Division Bench of this Court in — ‘Abhey Ram Jha v. Kandarp Narayan Jha’, AIR 1919 Pat 61 (B).

21. In that case Mullick, J. held that where in a proceeding under O. 9, R. 13, a minor defendant alleges that no legal guardian was appointed that is tantamount to a plea that he was not impleaded in the suit, and that the decree was made against a person who was not upon the record. Such a plea is, therefore, not open to an applicant under this rule. Mr. Sanyal, however, relies upon the observation of Jwala Prasad, J. in the above case to the following effect:

“It is too wide a proposition to lay down that O. 9 R. 13, implies a valid decree; for a defendant is always entitled to show that an ‘ex parte’ decree was obtained against him by means of surreptitious or fraudulent service of summons although it was made to appear to the Court under O. 9, R. 6, that the summons was duly served. Although on the face of a decree it appears that; it is proper and valid, the defendant in applying under R. 13, O. 9, to set it aside can show that the Court was misled by fraud in passing the decree”.

22. This does not help Mr. Sanyal for the simple reason that the present case is a case in an arbitration proceeding, and the reference to the arbitrators was made under S. 21 of the Act on the joint application of all the parties concerned, and, therefore, it cannot be said that a decree passed in such a proceeding would be an ‘ex parte’ decree.

23. If a minor has any grievance against such a decree, he has got a remedy under the Act itself, and he can file an objection under S. 30, Arbitration Act. He may take other proper steps also which may be available to him according to law. But it cannot be said that a decree passed in terms of an award is an ‘ex parte’ decree within the meaning of O. 6, R. 13.

24. Mr. Sanyal next relied on — ‘Binodini Debi v. Parraesbvvar Dayal’, AIR 1925 Pat 512 (C) for the proposition that a minor can apply under O. 9, R. 13, to set aside an ‘ex parte’ decree on the ground of negligence of his guardian in the conduct of the suit. No cue can possibly dispute this proposition on law. But the question is: Is the present decree an ‘ex parte’ decree within the meaning of O. 9, R. 13? Obviously, for the reasons given above, it is not, and therefore, the application of O. 9, R. 13, to the present case does not arise.

25. In the above case the decree was not a decree passed on an award. Therefore, this case does not help Mr. Sanyal.

26. The case of ‘Mahabir Prasad Bhagat v. Balkishun Das’, AIR 1922 Pat 376 (D), was also relied upon for shewing that a decree passed on an award is a decree within the meaning of Section 2(2) of the CPC and O. 9, R. 13 of the CPC applies to such & case. Courts, J. observed as follows:

“It seems clear then that when an application is made it is to be treated as and becomes a suit and that the decree upon the judgment which is pronounced according to the award becomes a decree under Section 2 of the CPC”.

27. In this case the award was made without intervention of the Court, and thereafter one of the parties to the agreement for reference to arbitration applied under Schedule II of the CPC in 1920, for filing the award and for the drawing up of a decree in accordance therewith. On this application a notice was issued to the defendants to show cause why this should not be done. No cause was shewn and a decree was passed in terms of the award.

28. Here the case is different. A suit between the parties was pending. All the parties concerned, including the minor appellant through his natural guardian, agreed to the reference to arbitration. Before the arbitration all the parties concerned appeared Hid took part in the proceedings. The award was made in presence of all the parties concerned.

29. The sward was filed in Court and an the persons interested were given notice of the filing of, the award. The father of the reliant did file an objection under Section 30 of the Arbitration Act, but he ??? it only on his own behalf altought he represented the minor appellant also. In such circumstances it cannot be said that the decree passed was an ‘ex parte’ decree.

30. The decree Dassed in such a case may be a decree within the meaning of Section 2(2) of the CPC. But we are concerned in finding out if the decree in the present case in the circumstances mentioned above can be considered an ex parte decree within the meaning of O. 9. R. 13 of the CPC.

31. The obvious answer would be that it is not. This case also, therefore, does not help Mr. Sanyal. Therefore, on this ground also the contention of Mr. Senyal that the application should be treated as an application under O. 9, R. 13, and therefore, an appeal would lie, fails.

32. In view of my decision on the preliminary objection, which I have upheld, it is not necessary to deal with the merits of the case, but out of deference for Mr. Sanyal, who has very strenuously urged the two points mentioned above on merit, I will deal with them also and show that there is no substance in those points as well.

33. The first contention of Mr. Sanyal is that O. 32, R. 7 of the CPC, was not complied with for two reasons; first, that leave was not, specifically granted, and secondly, that reasons for granting the leave were net given. O. 32, R. 7, Cl. (1) is in these terms:

“No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with, reference to the suit in which he acts as next friend or guardian.”

34. This provision of R. 7 of O. 32 clearly, lays down that the leave has to be expressly recorded, but it does not anywhere say that reasons for giving the leave should also be recorded. Mr. Sanyal in support of his contention that reasons have to be given relies on the case of — Ksdar Nath v. Basant Lal’, AIR 1939 Pat 278 (3), in which Harries C.J, held that

“the Court must first be asked on behalf of the minor for its leave to permit the guardian to agree to a reference to arbitration and the Court must expressly record its reasons for giving or refusing such permission.”

35. I respectfully differ from the observations of his Lordship, because O. 32, R. 7, on a plain interpretation, does not at all provide for any reason to be given at all. This point however, was considered by a Division Bench of this Court in — ‘Baton Prasad Jha v. Mahabir Jha’, AIR 1951 Pat 291 (F), relied upon by the learned Advocate-General.

36. In this case Sarjoo Prosad J. (as he then was), after a consideration of all the cases on the point, laid down that the principle of O. 32, R. 7, applies to an application for reference to arbitration pending in the suit; the rule does not expressly require that the Court must record reasons for granting the permission; and all that it requires is that the Court should apply its mind to the matter before granting such leave.

37. The contention of Mr. Sanyal, therefore, to the effect that reasons have not been given and as such O. 32, R. 7, has not been complied with must be rejected.

38. As regards the other contention of Mr. Sanyal that leave has not expressly been granted cannot also be sustained. On a reference to the orders dated 10-9-1941 and 13-9-1941, if would appear that an application was made before the Court for removal of the pleader guardian ad litem and for substitution of the natural guardian, namely, the father Ramjatan Singh, in his place, both by the plaintiff and Ramjatan, and, another petition was made by all the parties concerned, including Ramjatan Singh on behalf of his minor son for a reference of the matter to arbitration.

39. Ramjatan the same day also ashed for permission to join in the reference petition in his petition for discharge of the guardian ad litem. On 16-9-1941 the application for the discharge of the pleader guardian ad litem was kept pending, but the petition for a reference to arbitration was rejected because some of the lawyers who had signed the application did not hold power. The order dated 18-9-1941, is as follows:

“Natural guardians of the minor defendants file a petition praying for permission to refer the case to arbitration on behalf of the minor defendants. All the parties file a petition praying to refer the case to the arbitration of the person-named therein. All the parties and the pleaders have signed the petition. Let reference be made returnable by 17-11-41.”

40. Reading the two orders together, it is clear that the pleader guardian ad litem was discharged and the natural guardian, namely, the father of the appellant, was permitted to join the compromise and on that application reference to arbitration was made. Therefore, it cannot be said, on the facts of the present case, that leave has not been specifically granted. O. 32, R. 7, was interpreted by their Lordships of the Supreme Court in — ‘Bishundeo v. Seogeni Rai’, AIR 1951 SC 280 (G).

41. In that case their Lordships laid down that there is no set form in which the certificate under O. 32, R. 7 of the CPC 1908, which the Court is required to record, need be made. The Court is to realise that it has to give permission and that the compromise is for the benefit of the minor. If, therefore, from the order sheet it appears that the attention of the Court was drawn to the fact that there were minors and the Court has applied its mind to this aspect of the matter, and after considering this the Court has granted leave, that would be sufficient compliance with O. 32, R. 7.

42. Mr. Sanyal has relied on — ‘Awadhesh Prasad v. Widow of Triboni Prasad’, AIR 1940 Pat 663 (H), in which it was laid down that the karta of the family or the father of the minor cannot enter into a compromise so as to bind the minor unless the guardian ad litem be a party to it. This case has no application to the present case, accuse I have already held that the pleader guardian ad litem was discharged and in his place the father of the appellant was appointed and he was permitted to join the compromise. This case was considered by their Lordships of the Supreme Court in ‘AIR 1951 SC 280 (G)’, and at d. 283 Bose J., observed thus:

“If the Patna decision is meant to convey that before the guardian even begins negotiations for compromise with the other side, he must obtain the sanction of the Court, we are unable to agree with that view.”

43. Therefore, the contention of Mr. Sanyal that O. 32 R. 7, had not been complied with on the two grounds urged by him must be rejected.

44. The next contention of Mr. Sanyal is that O. 32. R. 5, has also not been complied with, because R. 5 provides that every application to the Court on behalf of a minor, other than an application under R. 10, sub-r. (2), shall be made by his next friend or by his guardian for the suit. His contention is that inasmuch as the pleader guardian ad litem did not join that application for reference to arbitration, it cannot be said that R. 5 had been complied with.

45. But this argument ignores the fact that an application was made to the Court both by the plaintiff and by the natural guardian, namely, the father of the appellant, for discharge of the pleader guardian ad litem and for substitution of Ramjatan's own name in his place and that was obviously allowed because the Court allowed the application for reference to arbitration on the next date after it was satisfied that all the parties concerned had joined the compromise. Therefore, this contention also fails.

46. Mr. Sanyal in this connection relied on the case of — ‘Doraswami Pillai v. Thungasami Pillai’, 27 Mad 377 (I), in which Bhashyam Ayyangar J., sitting singly, held that it is the duty of the Court if it finds that the next friend does not do his duty in relation to the suit, not to permit him to prejudice the interest of the minor. In the present case no such thing happened and as such it does not at all apply to the present case.

47. Another thing which is noticeable is this. The appeal has been filed by the mother, although the father or the pleader guardian ad litem were there. If the contention of Mr. Sanyal be accepted that the pleader guardian ad litem was not discharged, then how could an appeal be filed in this Court by the mother, who never figured before in the Court below at any stage? Therefore, the appeal by the mother on this ground would not be tenable.

48. The proper course for the appellant was to get a notice issued to the natural guardian who joined the reference to arbitration, or against the pleader guardian ad litem, if Mr. Sanyal's contention was correct that he had not been discharged, and after the notice of discharge had been given then only the mother could be permitted to prosecute the appeal, and as such, on this ground also, the appeal is not maintainable.

49. Another difficulty in the way of Mr. Sanyal is this. Under O. 32, R. 12, when a minor attains majority he has to elect whether he would proceed with the suit or application or it will not be proceeded with. In the present case the appellant attained majority sometime in 1952, but, curiously enough, so far no steps have been taken under O. 32, R. 12 of the CPC, to declare him major and to permit him to proceed with the appeal. For these reasons I find there is no merit in the appeal and as such it must be dismissed with costs.

Das, C.J:— I agree.

H.G.P

50. Appeal dismissed.