Agarwala, C.J:— This is an application in revision by the plaintiff. The facts relating to this application are as follows. The opposite party and their gotias, having obtained a decree against the petitioner, applied for execution. Sometime later the gotias of the opposite party filed two applications stating that the decree had been completely satisfied. The judgment-petitioner also applied for satisfaction of the decree to be certified. The opposite party objected, and the executing Court held that the claim had not been satisfied. Thereupon, on 13-12-1926, 13 bighas of the judgment-debtor's land was put up for sale and sold in execution, the purchasers being the opposite party decree-holder. The judgment-debtor then made an application under O. 21, R. 90, which was dismissed on 14-10-1927. After this the judgment-debtor brought a suit against the opposite party and their gotias, which was dismissed on 10-2-1931. The case of the petitioner is that after this there was an arrangement by which the opposite party agreed to reconvey his lands to him for Rs. 900, of which Rs. 700 was paid and Rs. 200 remained outstanding. There was, however, a dispute between the parties in regard to this matter and this was referred to the arbitration of punches. The punches gave a written award on 18-3-1941. They found that there was an agreement to re-convey the land for Rs. 1000, of which Rs. 625 had been paid and Rs. 375 remained due. The award directed the opposite party to execute a deed of re-conveyance in favour of the petitioner, and the latter to pay the balance due. It was registered on 30-8-1941. The present suit was instituted by the petitioner on 22-11-1941, on a court-fee of Re. 1, the value of the subject-matter for purposes of jurisdiction being stated to be Rs. 3000. In this suit the plaintiff prayed for an order that the award be filed and a decree prepared in accordance with it. The first Court decreed the suit in teems of the award. The defendants appealed. The appellate Court held that the plaintiff had failed to prove that the defendants had agreed to re-convey the property to him, or that there was a dispute between them which had been referred to the punches. The award was held not to be binding on the defendants, and the proceeding to have it filed in Court was held to be barred by limitation. The suit was, therefore, dismissed. It is against this order that the present application has been filed in this Court.

2. It is contended that the decision of the trial Court was final and that no appeal lay from that decision. In my opinion, whether the plaintiff is entitled to maintain this application depends on the nature of the proceeding out of which it has arisen. The proceeding was described by the plaintiff himself as a suit, and was initiated by a document which he described as a plaint in which he described himself as the plaintiff. It is drawn up in the form of a plaint and verified by the plaintiff as such. If the proceeding be regarded as a suit the present application must fail because, in that case, the plaintiff had a right to appeal against the decision of the appellate Court, and, therefore, an application to revise that decree does not lie. Even if the application were allowed to be converted into an appeal it would fail on the merits by reason of the finding of the Court of appeal below that there was in fact no reference to the punches. This application must, in my opinion, also fail if the “plaint” be regarded as an application to file the award. The only procedure prescribed for filing an award is that contained in Section 14(2) of the Arbitration Act, 1940. Section 14 occurs in chap. II of the Act, which includes Ss. 3 to 19 (inclusive) and which governs an arbitration without the intervention of the Court. It also applies to an arbitration with the intervention of the Court, where there is no suit pending, by reason of S. 20(5), and to an arbitration in a suit by reason of S. 25. The present is an instance of an arbitration without the intervention of the Court, and, therefore, if the Act applies to it at all, it is chap. II which applies. Section 8 enumerates the circumstances in which an arbitrator or arbitrators may be appointed by the Court. It is not the plaintiff's case that the punches were appointed by the Court. Section 4 applies to a case where the parties to an “arbitration agreement” agree that the arbitrator or arbitrators are to be appointed by a person designated in the agreement. It is not the plaintiff's case that these punches were persons appointed by a person designated by the parties to the alleged agreement to refer the dispute to arbitration. Furthermore, the term “arbitration agreement” has been defined in S. 2(a) and does not include a parole agreement such as is alleged in the present case. Section 9 refers to an arbitration agreement which provides for a reference to two arbitrators. That also is not the plaintiff's case, for he alleges that the parties agreed to refer the alleged dispute to five punches. Section 10 applies to a case where an arbitration agreement provides for a reference to three arbitrators. There is no provision of the Act which expressly applies to an agreement to refer a dispute to more than three arbitrators. Assuming, however, that such an agreement would be governed by the Act, it is clear that chap. II of the Act will only apply when the agreement is in writing. In other words, the existence of an “arbitration agreement” i.e an agreement in writing, is the foundation of the jurisdiction of the Court to direct the arbitrators, under s. 14(2), to cause the award to be filed in Court.

3. Reference was made to s. 26 of the Act in support of the contention that the Act applies to a parole agreement to refer a dispute to arbitration. This section provides; “save as otherwise provided in the Act the provisions of this Chapter shall apply to all arbitrations.” This section occurs in chap V which is headed “General”, and, in my opinion, all that S. 26 means is that the provisions of chap. V shall apply to all arbitrations which are governed by the Act and not that they apply also to arbitrations not governed by the Act.

4. It follows that the Court of first instance had no jurisdiction to entertain an application to file the award in the present case. In that view of the matter, it is not desirable for this Court to interfere in revision with an order which has relegated the parties to the position they would have been in but for this misconceived proceeding. The result is that the rule must be discharged.

5. Meredith, J.:— This application raises a number of difficult questions with regard to the interpretation of the Arbitration Act (Act x of 1940). The petition is on behalf of one Gauri Singh. On 22-11-1941, he presented in the Court of the Munsif at Arrah a document headed as a plaint, describing himself as plaintiff, and the opposite party as defendants. In this document he recited that the plaintiff and the defendants are agnates. During the plaintiff's minority the specified property was sold in execution of a decree by the defendants, and there were several subsequent litigations ending in favour of the defendants. When the plaintiff attained the age of discretion, he asked the defendants to return the property on taking its value. The defendants agreed, and the plaintiff deposited Rs. 700, and was to deposit a further ss. 200, but subsequently differences arose between them, and ultimately the parties appointed certain named persons as arbitrators to decide the disputed points, namely, what amount the plaintiff was to pay, what amount he had already paid, etc.

6. The arbitrators gave their award on 18-3-1941, for which the plaintiff applied for compulsory registration on 17-7-1941, and the award was registered on the admission of the arbitrators on 30-8-1941. The arbitrators also gave notice to the parties.

7. When the plaintiff asked the defendants to give effect to the award, the refused to do so. Hence it became necessary for the plaintiff to apply to the Court for filing the award, and getting a decree.

8. The plaintiff accordingly asked for an order for filing the award and preparing a decree of the Court. A court-fee of Re. 1 only was paid.

9. The opposite party filed a written statement saying that the plaintiff had no cause of action to institute a suit, and asserting inter alia that the plaintiff had never asked them to take money and return the property, nor did the defendants agree to it, nor did the plaintiff deposit any money, nor did the parties appoint arbitrators to settle the points alleged by the plaintiff or for any other purpose. The punches were never appointed, nor was there any arbitration between the parties, nor was any award given. There was no arbitration agreement, nor had any been put forward. The arbitrators were self-styled arbitrators. They got the award registered fraudulently and collusively and were guilty of misconduct. The defendants accordingly prayed that the plaintiff's suit might be dismissed with costs.

10. The suit succeeded before the Munsif, who accepted the plaintiff's case and ordered that the suit be decreed in full. The defendants appealed, and the learned Subordinate Judge held that the suit was false, and allowed the appeal, first because there had been no reference to arbitration, and also, because, in his opinion, the suit was barred by limitation.

11. The point urged by Mr. L.K Jha for the petitioner is that no appeal lay, and the order of the appellate Court was, therefore, without jurisdiction. He argues that this so-called suit was really an application for filing the award under Section 14(2) of the Arbitration Act. The order of the Court was under S. 17, pronouncing judgment according to the award; and s. 17 says that 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. The appeal which was taken was not upon either of the specified grounds, and, therefore, was incompetent. The case was not one where any appeal lay under S. 39(1), because the order was not one of any of the six kinds specified in that section.

12. Mr. G.P Das for the opposite party contended first that this was an application not under s. 14 of the, Act, but under s. 20 of the Act, and an appeal, therefore, lay under S. 39(1)(iv). This argument need not detain us. Section 20 relates to a stage prior to the award and an application to file in Court the arbitration agreement, and proceed to arbitration with the intervention of the Court. It has nothing to do with a case like the present.

13. Mr. Das further argues, however, that his clients' written statement amounted, in substance, to an application under s. 33 of the Act challenging the existence or validity of the alleged arbitration agreement and award. The order of the Court amounted to a refusal of this application, and the appeal, therefore, lay under S. 39(1)(vi), namely, as against an order refusing to set aside an award. The appeal was preferred as a miscellaneous appeal against an order.

14. Alternatively Mr. Das argues that the Act of 1940 is not exhaustive. It relates only to awards following arbitration agreements within the meaning of the Act. “Arbitration agreement” is defined in s. 2(a) as “a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not.” It was nobody's case that there was any such written agreement. The petitioner's case was that there was an oral reference to arbitration. Such an oral reference is perfectly valid, and so is the award upon it, but it does not come within the scope of the Act. The award can, therefore, be enforced by an ordinary suit under the Code of Civil Procedure. Consequently an appeal lay a an appeal from a decree. It was in error described as a miscellaneous appeal, and all that was necessary was that the appellants should pay the necessary court-fee.

15. The difficulty in dealing with these contentions lies in my opinion, in the fact that the 1940 Act contains examples of bad drafting which it would be hard to beat. Take for example S. 33, which runs:

“Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court, and the Court shall decide the question on affidavits, etc.”

16. In terms the application is limited to parties to an arbitration agreement or those deriving from them. An arbitration agreement is, therefore presupposed. Yet the Court is to decide upon the existence of such agreement. If the Court decides that there was no such agreement and that there were no parties to any such agreement, upon the terms of the section no application would lie.

17. Then under S. 30, certain grounds are specified as the sole grounds upon which an award can be set aside, but there is no provision anywhere for an application to set aside an award, unless S. 33 be held to provide for such an application, but S. 33 speaks only of challenging the existence of the validity. However, I am of opinion that an application to set aside an award can be made under S. 33, and I am further of opinion that in any view the written statement in the present cage can be considered as an application under S. 33. Upon the view I have expressed, an appeal would lie under S. 39(1)(vi) against the order of the Court, which amounted to an order refusing to set aside the award.

18. But then we run up against s. 17. Section 17 runs as follows:

“Where the Court seas do 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 aside 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.”

19. It clearly contemplates that the application to set aside the award may be made in the proceedings for filing the award, because, before pronouncing a decree under S. 17, the Court is to wait until the time for making an application to set aside the award has expired, or, if such an application has been made, it is to proceed to the decree after refusing it. Note that as soon as it refuses, a right of appeal arises at once under S. 39(1)(vi). But the Court is not to await the result of the appeal, if any. So, having refused the application to set aside the award, the Court proceeds to pass a decree filing the award, and then there is no appeal from that decree except upon two limited grounds. What is to happen when, as may well be the case, the appeal against the order refusing to set aside the award is allowed? As to that the Act is silent. But it seems to me to amount to this that either s. 17 takes away with one hand what S. 39 has given with the other or the provision against appeal in S. 17 is ineffective since it is always liable to be frustrated by the appeal under s. 39(1)(vi). I am myself of opinion that the provisions of S. 17 cannot override the specific provision in S. 39(1)(vi), and consequently, if the order refusing to set aside the award is subsequently reversed in appeal, it will have the effect of upsetting the judgment and decree under S. 17 as effectively as if an appeal had been allowed against it.

20. In my judgment, if the plaintiff's application is to be regarded as one under S. 14, then, despite the provisions of S. 17, the appeal was competent as a miscellaneous appeal against an order under s. 39(1)(vi), and as the appellate order destroys the award itself, it is effective to destroy the decree filing the award.

21. I now come to the alternative contention, that this was a suit altogether outside the Act, for enforcing an award made upon an oral reference, and so the provision against appeal in S. 17 has no application. I confess that in tackling this question and trying to ascertain the intention of the framers of the Act, I have at times felt inclined to throw up my hands in despair, and exclaim “God alone knows what they did mean.” We Judges can only do our best. Its may be regarded as settled that, so far as sch. 2, Code of Civil Procedure, and the Arbitration Act of 1899 were concerned, an award based upon an oral submission or reference to arbitration was not touched, but was perfectly legal and valid, and the award could be enforced by suit, though not by the special procedure under the provisions of the Code of Civil Procedure, or the 1899 Act. That Act was regarded as not exhaustive even in the limited areas where it was applicable. The contrary view was taken by Beaman, J. in Rukhanbai v. Adamji, 33 Bom. 69,1 but that has been overruled in Bombay by a Division Bench in Mathuradas Maganlal…(Original Plaintiff), v. Maganlal Parbhudas…(Original Defendant), .*, 58 Bom. 3692 where it was definitely held that there is nothing in the Arbitration Act, 1899, or in Section 89 or in sch. 2 of the CPC, 1908, to suggest that an oral agreement to refer to arbitration is invalid. The Act of 1899 does not preclude an oral application.

22. This view was also taken by the Madras High Court in Ponnamma v. Marappudi Kotamma, 56 Mad. 85,3 and also in our own High Court in Ramautar Sah v. Langat Singh, A.I.R 1931 Pat. 92.4 The view there taken was that there is nothing in law which requires a submission of the dispute between the parties to arbitration to be in writing. A parole submission is a legal submission to arbitration.

23. Has the position been altered by the Act of 1940? In my opinion it has. The Act of 1899 was described as “An Act to amend the law relating to arbitration”, but the Act of 1940 is headed as “An Act to consolidate and amend the law relating to arbitration”, and the preamble says “whereas it is expedient to consolidate and amend the law relating to arbitration in British India”. It is an Act to consolidate the arbitration law. This suggests that it is intended to be comprehensive and exhaustive. The Legislators must have been aware that it had been settled that an award based upon an oral submission could be a valid award. It was known, there-fore, that there were two sorts of valid award, and that to use the word “award” without more would, in the circumstances, be ambiguous; yet that is just how the word has been used. It would have been quite easy to say that “award” means an award based upon an arbitration agreement as defined in the Act? that is, a written agreement; but instead of that “award” is defined as “an arbitration award.” It would also have been easy to clarify the position by providing, if that was the intention, that an award upon an oral submission would not be valid and enforceable. But nothing of the sort was done.

24. After defining an award ambiguously, the ambiguous word is used in stringent provisions to prevent any procedure with reference to awards other than that provided in the Act. Section 47 lays down that, subject to the provisions of S. 46, which are in substance a provision for an arbitration clause in an Act to be treated as an arbitration agreement and which do not concern us—and save as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder. I find myself unable to construe the words “all arbitrations” otherwise than as including both arbitrations upon a written submission and on an oral submission.

25. To the same effect is S. 26, which heads the Chapter or general provisions, and runs: “Save as otherwise provided in this Act, the provisions of this Chapter shall apply to all arbitrations.”

26. Section 80, which occurs in this General Chap. V, says that an award shall not be set aside except upon certain specified grounds, and if an award is used in the wide sense this would can any suit outside the Act to set aside an award. Section 32, however, is much more specified. Its provisions are:

“Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act.”

27. This appears to be intended to bar all proceedings outside the Act with reference to arbitrations.

28. I think I am justified in holding, in view of these provisions, that the Act was intended to be exhaustive of the law and procedure relating to arbitration. I cannot imagine that the words “arbitrations” and “awards” could have been used in such specific provisions without more, specially having regard to the definition of award, if it was intended to leave it open to the parties to an award based upon an oral submission to proceed to enforce it or set it aside by proceedings by way of suit altogether outside the Act. Let us take it then that the Act intended that there should be no such proceedings.

29. It does not follow from this, however, that it was intended to render awards based upon oral submissions illegal or invalid or unenforceable. Prima facie it might have been contemplated that awards based upon oral submissions were also to be enforceable under the procedure of the Act, though the Act has made it clear that, so far as the submission or arbitration agreement is-concerned, if it is to be enforced under the Act it must be in writing. The Act takes no account of oral agreements, and defines “arbitration agreement” to exclude them.

30. The problem whether it was intended that awards upon oral submissions could be enforced under the Act is a difficult one, but the opinion that I have formed is that was not contemplated. The only provision for enforcement of an arbitration award made without that intervention of the Court is s. 14(2). I am of opinion that this section can only be read as referring to awards based upon written arbitration agreements. The section cannot be read in isolation. Section 8 relates to the power of the Court to appoint an arbitrator or umpire, and clearly covers only cases where there is an arbitration, agreement as defined in the Act. Section 9 provides for the appointment of new arbitrations in certain circumstances by the parties, but again, relates only to arbitration upon a written agreement. Section 10 contains provisions regarding; appointment of three or more arbitrators, and here again it is made clear that it is considering only appointments on an arbitration agreement, Section 11 uses the word “reference”, but in the context it is clear enough that reference is to an arbitration agreement. Section 12 deals with the power of the Court to remove an arbitrator or an umpire.

31. Section 13 defines the powers of the arbitrators or umpire. The use of the word “the” shows that “arbitrators” is used with reference to the arbitrators referred to in the preceding sections, namely, arbitrators upon a written agreement, and this is made even more clear by the words “unless a different intention is expressed in the agreement”. Section 13 is manifestly, thinking of such arbitrators or umpire only.

32. Then comes S. 14, and begins “when the arbitrators or umpire”. It seems to me clear, having regard to the use of the word “the”, that only the same arbitrators are referred to, namely, those appointed in pursuance of an arbitration, agreement which must be in writing.

33. There is another clue in the wording of S. 14(2) itself: “The arbitrators or umpire shall, at the request of any party to the arbitration agreement or any person claiming under such party, or if so directed by the Court” etc. etc. I feel confident that the reference again is only to arbitration upon a written agreement.

34. It follows that the Act contains no provisions for filing any award based upon an oral submission.

35. If then, as I have held, the Act is intended to be exhaustive, and contains no provisions for the enforcement of an award based upon an oral submission, the only possible conclusion is that the Legislature intended that such an award should not be enforceable at all, and that no such suit should lie.

36. In the light of all the above, let us next consider the nature of the proceeding with which we are concerned. No suit of the sort suggested would lie at all. No attempt was made to pay the court-fees upon such a suit, nor were any such demanded. The relief asked for was not the enforcement of the award, but filing it—the expression used in the Act. It is quite true the application was not strictly in accordance with the provisions of s. 14(2) because the award was filed with the so-called plaint, and the Court was not asked for a direction upon the arbitrators to produce it. The parties were also spoken of as plaintiff and defendants. It is also true that, if my interpretation is correct, as an application under S. 14(2) it was no more fit to succeed than as a suit. Nevertheless, I think, upon the whole it must be treated as a misconceived application under S. 14(2). Having regard to the view I have taken of the law as enacted in the Arbitration Act of 1940, the Court could not entertain the matter except as an application under S. 14(2). That being so, the written statement, as I have already held, incorporates an application to set aside the award, and the miscellaneous appeal was a competent appeal under s. 39(1)(vi).

37. I must observe, however, that in the alternative view if this be regarded as a suit outside the Act, then also the appeal was competent. The decision of the appellate Court; if my interpretation of the law is correct, was also right, though not necessarily for the reasons given in the judgment. In either view, the present application fails, and I would accordingly dismiss it with costs, assessing the hearing fee at six gold mohurs.

D.S

38. Application dismissed.