Thadani, C.J:— This is an application under Section 115 of the CPC, directed against an order of the learned Additional Subordinate Judge, L.A.D dated 30th November 1949, by which he dismissed the applicant appeal on the ground that no appeal lay from an order passed by the Munsiff of Nowgong who had dismissed certain objection to an award on the ground that they were filed beyond time. The learned Subordinate Judge, while dismissing the appeal on the ground that no appeal lay, agreed with the Munsiff that the objections to the award were filed beyond time.
2. It is contended on behalf of the applicant that the learned Sub-Judge was in error in holding that no appeal lay.
3. We think this contention must prevail. Whether objections to an award are dismissed on the merits or they are dismissed on the ground that they are filed beyond time, the Court by dismissing them in effect refuses to but aside the award, and an order refusing to set aside an award is clearly appealable under Section 39 of the Arbitration Act.
4. In a case reported in Bholanath v. Chandra Shekhar, A.I.R (37) 1950 Cal. 53, Das, J., observed:
“In my opinion, the fact that by the same order the Munsiff overruled the objection to the filing of the award and a to 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 S. 39.”
5. In a case reported in Hola Ram Verhomal v. Governor-General of India in Council, A.I.R (34) 1947 Sind 145 : (ILR 1946 KAR 459), the view taken was that an order refusing to set aside an award on the ground that object ions were filed out of time, was an appealable order under Section 39 of the Arbitration Act. The learned Sub-Judge has referred to a decision of the Rangoon High Court reported in D.B Das v. Daya Lal & Sons, A.I.R (20) 1933 Rang. 38 : (142 I.C 835), but that decision was given before the pas sing of the Arbitration Act of 1940.
6. While we think the learned Judge was in error in holding that no appeal lay against the order of the Munsiff who refused to set aside the award on the ground that objections to the award were filed beyond time, it does not follow that our interference in this matter is called for. Both the Courts below have found as a fact that the objections to the award were filed out of time. In order to meet this difficulty, the applicant's advocate for the first time in this Court contended that the applicant was not served by the Court of the first instance with a notice of the filing of the award under the provisions of Section 14(2) of the Arbitration Act. We cannot permit this point to be raised for the first time in revision. Moreover the diary shows that a notice under S. 14(2) was served upon the applicant. The date of the service is stated to be 5th February 1948 and the objections were filed on 24th March 1948, clearly beyond the period allowed by law.
7. Accordingly we decline to interfere, and the revision application is dismissed with costs. The rule is discharged.
Ram Labhaya, J.:— I agree.
8. Revision dismissed.