J.N Bhat, J.:— This is an appeal under Section 39 of the Arbitration Act against the judgment and decree of the learned District Judge Srinagar dated 3-10-64 whereby he has refused to set aside an award passed by Shri M.M Siddiqui, late Financial Commr. of the State dated 12-12-61.

2. The history of the litigation is that there is a holy shrine of Hazrat Makhdoom Sheikh Hamza on the Hari Parbat hillock, held in great esteem by the residents of Kashmir. The saint is alleged to have been born in the year 900 Hijri and passed away in the year 984 Hijri. He had no issue of his own, but it is alleged that he adopted one Mohd. All. His brother was one Baba Ali Raina. Descendants of Mohd. Ali, his adopted son, are called Pir Sahiban Pain and those of his brother, Baba Ali Raina, are called Pir Sahiban Baba. Both these Pir Sahiban are called Baba Sahiban also. As is usual at such shrines the devotees go to make their offerings in cash and kind. People in charge of the holy shrine contend for the income which thus accrues in the name of the holy shrine. In this case according to Shri M.M Sidiqui, the arbitrator, the first dispute arose between the above mentioned two sets of Pirs and was finally decided by Babu Nilambar on 29th Jeth 1932 (Bikrami) by which order Khatumkhani was given to the Pir Sahiban Bala and Fatehkhani to Pir Sahiban Pain, and it was further held that one Subhan Pahlwan and his son should perform Khatumkhani on behalf of Pir Sahiban Bala. In addition to the two above sets of people working in the shrine, another set of people who are called the Khadims also claimed some share in the income of this shrine. On this claim of theirs, a dispute arose between the Pir Sahiban on the one hand and the Khadims on the other, in the year 1969 Bikrami. Earnings from the Shamadan Androni Deodi was given half to the Khadims and they were also to get half of the income of Phallus, i.e, copper coins. The remaining half of this income was to go to the Pirs and the offerings in other coins were also to go to them. This dispute went upto the High Court and from the High Court it went to his Highness the Maharaja Bahadur who by his order dated 7-5-74 upheld the decision of the courts based on an award given by one Mirza Ghulam Mustafa.

3. In the present dispute there are alleged to be three parties: one is the Pir Sahibs (both Pain and Bala, called also as Baba Sahiban). The other party is the Khadims. The third party is the Managing Committee (Majlis Intimzamia) which exercises some sort of supervision over the holy shrine. The dispute between the Pirs and Khadims continued to such an extent that in the fifties there were criminal and civil cases between the Khadims and the Pirs. Four civil suits were brought in different courts, some by the so-called Khadims, the others by the so-called Pirs. These suits are as under.

4. The first suit was No. 22 of 1957 instituted on 18-11-57 by Pir Ali Shah who is a Baba against 90 defendants. One Mirza Kamal Din who happened to be the President of the Intizamia Committee had given an award and he was one of the defendants in the case. The second suit was No. 41 of 1958, Asadullah Pahalwan (Khadim) v. Lassa Baba, instituted on 16-8-58. The third suit was suit No. 18 of 1960 instituted on 7th June, 60 by Pir Abdul Majid Makhdoomi (Baba Sahib) against Asadullah Pahalwan & ors., Khadims, in the court of the ADM Srinagar. The fourth suit was suit No. 74 of 1960 instituted on 26th July, 60, Ali Mohd (Khadims) v. Pir Mohiudin (Baba Sahiban). When these cases were pending in the different courts, a criminal revision pertaining to a dispute relating to the holy shrine came up before the High Court and was heard by the Hon'ble C.J Thereupon the parties to the disputes agreed that all the four cases be transferred to the court of the District Judge and indicated before the learned C.J their preparedness to refer the matter to arbitration. On 14-2-61 four separate applications were made in the court of the District Judge requesting the court to refer the entire dispute in all the four suits to the arbitration of Shri M.M Sidiqui, who was then the Financial Commr. in the State of Jammu & Kashmir. On 28-2-61 the district court passed an order that the matters in these suits be referred to the arbitration of the arbitrator. The matter was conveyed to the arbitrator, Shri Sidiqui, by letter dated 10th March, 61. Mr. Siddiqui called upon the parties to file their claims and counter-claims and their documents and then heard argument and finally passed iris award on 12-12-61. Tracing the whole history of the matter in dispute, he finally passed the following award:—

(1) The only religious rite which the Khadims are to perform is the Khatm-khwani. All other rites and ceremonies, including Azan, Peswani Namaz, Naat Khwani, Gulab Pashi etc. are to be performed by the Pir Sahiban.

(2) The management of the secular affairs of the shrine vests in the Pir Sahiban. These affairs shall be managed through the Intizamia Committee as at present constituted.

(3) The Khadims shall be entitled to two-fifths share of all coins upto and including 50 np in value offered at ‘Shamadan Deorhi Andaruni.’ The remaining three-fifths, as well as all other offerings made at this Shamadan, shall go to the Pir Sahiban.

(4)(a) The offerings at ‘Deorhi Beruni’ and ‘Rauza Sharif’ shall go to the Pir Sahiban exclusively.

(b) Any offering or present made to an individual Pir Sahib or Khadim by a devotee shall be appropriated by him. But such offering or present shall not be solicited or received within the precincts of the shrine, and if so received shall be confiscated and appropriated towards the general revenues of the shrine by the Intizamia Committee. In case the transgressor fails to deliver the offering or present to the Committee or its representative or habitually solicits them, the Committee shall have the right to exclude him from the precincts of the shrine for such period as it considers fit.

(c) The distribution of nan and shirini shall continue to be made by the Intizamia Committee. It any devotee makes any offering while receiving tabarruk it shall equally be divided between the Pir Sahiban and the Khadims.

(d) Jorabardari should be allocated by the Intizamia Committee alternately to the Pir Sahiban and the Khadims on a weekly basis. The charges to be made for one pair of shoes should not be allowed to exceed 5 np, or an one anna coin so long as such coin is current. Any party charging more shall confiscate its turn for the next week which shall be allotted to the other party. In the event of any of the parties failing to accept the arrangement, the Intizamia Committee shall take such action as it considers fit.”

5. When the award was filed in the court of the District Judge, the Majlis Intizamia and the Baba Sahiban raised no objection to it. The Khadim Sahiban put in objections and requested the court to set aside the award.

6. Before the learned District Judge, the parties led evidence with respect to only one fact, i.e, death of Ali Shah, and argued the case as a whole. The learned District Judge heard arguments of the learned counsel for the parties, but ultimately rejected the contention of the Khadims and made the award a decree of the court. It is against this order that the present appeal has been filed.

7. Learned counsel for the Khadims addressed very long and elaborate arguments. They tried to attack the award as well as the findings of the District Judge from different angles, and raised certain technical objections to the award which will be discussed separately. One of the arguments, though not the first, was that issues were raised before the Distinct Judge after the filing of the award, but the learned District Judge has given no separate finding on these issues. These issues were framed on 26-3-62 and are as follows.—

(1) Whether the arbitrator had misconducted himself in these proceedings? OPA

(2) Whether the award is otherwise invalid and liable to be set aside, and if so on what grounds? OPA

(3) Whether the application of Asad Ullah and others is entertainable and within time? OPA.

8. According to Mr. Sunder Lal no separate finding has been given on these issues. As appears from the judgment of the District Judge and the course of arguments followed before us we feel that the learned District Judge is not to blame for not expressly stating that his finding on the different issues is this or that. The whole case before us have been argued on the basis of the objections raised by the Khadims to the maintainability of the award. Similarly must have been the case before the District Judge. The learned counsel before him did not discuss the issues, but enumerated the grounds of attack on the proceedings and the award. Be it said to the credit of the District Judge that he has considered all the objections argued by the learned counsel before him. The whole finding of the District Judge is a finding on the issues. The issues are only the verbatim reproduction of the parts of Section 30 of the Arbitration Act. They are couched in very wide language and envisage all arguments that might be advanced against the maintainability of the award. So in our opinion the grievance of the learned counsel for the Khadims that there is no specific finding on the different issues has no significance, more so as the points raised by the learned counsel before the District Judge have been discussed by him in detail and findings recorded thereon. It may be recalled that before the arbitrator the parties produced certain documents and Sanads and argued the case, before the District Judge excepting on one point, that is on the death of Ali Pahalwan, no evidence was produced by any of the parties and arguments alone were addressed on the rest of the case.

9. Before we start discussing the various arguments on the various grounds of objection raised by Mr. Sunder Lal, it is necessary to state that out of the three so-called parties before the arbitrator the Pir Sahiban and Majlis Intizamia have accepted the award. The Khadims alone challenge it. Even the Khadims have had nothing to say about the personal conduct, integrity and impartiality of Mr. M.M Siddiqui arbitrator. The whole argument of the Khadims centered round certain technicalities which were not observed in this case and which in the eye of law vitiated the award. So we have only to examine what weight can be given to the technical objections raised about this award, and whether on the basis of certain alleged technical defects the award should be set aside or not.

10. Before again discussing the different objections ad seriatim it would be worthwhile to lay down the approach that courts of law have been enjoined upon to observe in applying their mind as to whether a particular award should be set aside or not. These principles have very clearly and exhaustively been laid down by their Lordships of the Supreme Court in Santa Sila Devi v. Dhirendra Nath Sen, AIR 1963 SC 1677 as follows:—

“Where an award given by the arbitrator is filed in court and it is challenged on the ground of its incompleteness, the court has to bear in mind certain basic positions. These are: (I) a Court should approach an award with a desire to support it, if that is reasonably possible, rather than to destroy it by calling it illegal; (2) unless the reference to arbitration specifically so requires the arbitrator is not bound to deal with each claim or matter separately but can deliver a consolidated award. The legal position is dear that unless so specifically required an award need not formally express the decision of the arbitrator on each, matter of difference; (3) unless the contra appears the court will presume that the award disposes finally of all the matters in difference; and (4) where an award is made de praemissis (that is of and concerning all the matters in dispute referred to the arbitrator) the presumption is that the arbitrator intended to dispose of finally all the matters in difference: and his award will be held final, if by any intendment it can be made so.

Where therefore, after taking into consideration the arbitration agreement, the statements filed by the parties and the document produced, the arbitrator proceeds to give his award in writing as to all disputes referred to him, the court will assume that the arbitrator has considered and disposed of every claim made or defence raised. Since the award states that it is made of and concerning all the matters in dispute referred to the arbitrator, there is a presumption that the award is complete. In such a circumstance, the silence of the award as regards a particular claim must be taken to be intended as a decision rejecting the claim to that relief”.

11. These should be the cardinal principles to be kept in view while judging whether an award should be set aside or not. Besides it has been laid down numerous times by the Supreme Court and by the different High Courts that an arbitrator is a judge of the choice of the parties and his decision should not be set aside even if the court as a court of law would come to a different conclusion on the same facts, unless there is an error apparent on the face of the record which makes it unsustainable. See Union Of India v. A.L Rallia Ram, AIR 1963 SC 1685, Dr. Dr S. Dutt v. University Of Delhi, AIR 1958 SC 1050 and Seth Thawardas Pherumal v. Union Of India, (S) AIR 1955 SC 468.

12. The first contention raised by Mr. Sunder Lal was that there was no valid reference to the arbitrator. This argument, further analyzed, is that there were four suits which had as their subject-matter different matters. The reference to arbitration was vague, and secondly the arbitrator should not have given one award but should have given four different awards in the four different suits, and further that there were certain matters specifically raised which have not been clearly adjudicated upon by the arbitrator.

13. With reference to the first part of this argument that there was no valid reference to the arbitration, his contention was that no specific matters were referred to the arbitrator by the court order or for that matter by means of the so-called applications inviting a reference as an arbitrator to Mr. Siddiqui. Mr. Sunder Lal stated that only in one case, i.e, civil suit No. 22 of 1957 which was pending in the court of the Second Addl. Munsiff issues were struck and in the other cases even the written statement had not been filed. According to Mr. Sunder Lal some of the issues raised in that case have not been specifically adjudicated upon by the arbitrator. This argument in our view does not hold water. In the first place the dispute was with respect to the share of income that would accrue from different sources at the holy shrine of Makhdoom Sahib. What particular form a particular suit had or took was only one of the many disputes which did arise between the claimants of this income in one form or the other. The real dispute was about the management of the affairs of the holy shrine and different ceremonies connected with it and with the distribution of income which accrued to the shrine in different forms. These were the basic disputes, no matter what part of these disputes was the subject-matter of each suit. When a reference was made to the arbitrator, the parties to those suits put in applications whereby they referred all the matters in dispute to the arbitration of the said arbitrator. The learned arbitrator did not rest content with the applications. He issued notice to the parties to appear before him and they appeared before him on 20th May, 61. On that day he directed the parties to file their respective claims with respect to all the matters in dispute and they did so before him. Later on he formulated these differences in paragraph No. 7. On page 3 of this award he says that the parties were required to file written statements of their case. After these statements were received, there was an oral discussion and the points which finally emerged as requiring decision were as follows:—

“(1) The respective rights of the parties to conducting the various religious rites and ceremonies performed at the shrine.

(2) Then rights to the management of the affairs of the shrine other than religious ceremonies.

(3) The share which the Khadims should get of the offerings made at ‘Shamadan Deorhi Andanmi’.

(4) The manner in which the other income accruing to the parties is to be appropriated.”

14. In paragraph 8 of his award the arbitrator states:—

“Parties then filed the documents on which they relied in support of their case. This was followed by arguments by then learned counsel”.

15. From this it would appear that the parties were given the fullest opportunity of stating their respective cases by the arbitrator and after having heard them orally he formulated the various matters that were in dispute between them and then adjudicated upon them separately, giving his findings on the basis of the available record and the arguments advanced, Therefore, the argument of Mr. Sunder Lal that no definite matters were referred to the arbitrator or that he has not given his finding on all the disputed matters is not correct, as would appear from the following passage of the Supreme Court authority referred to above:

“Unless the contrary appears the Court will presume that the award disposes finally of all the matters in difference. Where an award is made de praemisses, the presumption is, that the arbitrator intended to dispose finally of all the matters in difference and his award will be held final, if by any intendment it can be made so”.

16. It has been further held in Raminder Singh v. Mohinder Singh, AIR 1940 Lah 186 that an arbitrator need not record a finding on all the points.

17. The above observations of their Lordships or the Supreme Court apply with full force to the facts of this case, and the argument on this aspect of the case of Mr. Sunder Lal has no substance in it.

18. Mr. Sunder Lal next vehemently contended that the arbitration agreement was not signed by all the interested parties in the different suits. He pointed out that in suit No. 1 Mirza Kamal-ud-Din, Pir Saif-ud-Din and Pir Mohd. Amin had not signed the application. Similarly in suit No. 2 Mirza Kamal-ud-Din, Tayub Shah and Ghulam Mustafa had not signed the application. In suit No. 4 also Pir Mohd. Din, Ghulam Mohd. Gada, Ghulam Qadir Khan, Pir Mohd. Amin, Pir Mohd. Khalil, Khurshid Ahmad Mantu, Ghulam Hasan Kant and Pir Mohd. Yusuf had not signed the arbitration agreement. His argument was based on Section 21 of the Arbitration Act. S. 21 states that

“where in any suit all the parties interested agree that any matter in difference between them in the suit shall be referred to arbitration, they may at any time before the judgment is pronounced apply in writing to the court for an order of reference”.

19. According to Mr. Sunder Lal all the plaintiffs and defendants enumerated in the different suits are interested parties, and secondly that all of them have not made any application in writing signed by them and therefore the reference is invalid as well as the award based on such a reference. In support of his contention he cited the following authorities:— Deep Narain Singh v. Mt. Dhaneshwari, AIR 1960 Pat 201, Ram Harakh Singh v. Mumtaz Husain, AIR 1949 All 679, T.S. Subba Rao v. Appadurai Aiyar, AIR 1925 Mad 621.

20. In addition to these authorities other authorities are also there which need not be multiplied.

21. To dispose of this argument of Mr. Sunder Lal one has to take into consideration the nature of the dispute between the parties and then consider the legal formalities of the plaintiffs and the defendants individually having appended their signatures to the applications for arbitration. As has been observed above and as is clear from the record of the case also, the different persons arrayed as plaintiffs and defendants in the different suits do not claim any specific or particular individual interest in the matter. There are really two parties to the dispute, i.e the Pir Sahiban or Babasahiban on the one hand and the Kliadim Sahiban on the other. Each set of these people has interest in the real matter of dispute i.e management and share of the income which accrues to the shrine in different forms and through different persons. The bone of contention between these two parties is the appropriation of the profits. The third set of people is the management or the Intizamia Committee. They have no personal interest in the matter they do not claim anything out of the earnings made at the shrine and their only interest is that the shrine is properly managed, and that its sanctity is preserved. Strictly speaking there were only two parties to the dispute, the third party that of the Managing Committee beings only a formal party. Secondly we have to determine who are the parties interested. In Wharton's Law Lexicon (4th edn) parties is defined as ‘persons jointly concerned in any deed or act, litigants’. Fortunately in Section 21 of the Arbitration Act the words used are ‘parties interested’ and not persons interested.

22. In our opinion the parties in this case are not the defendants or the plaintiffs individually but the parties interested are the Pirs Sahiban and the Khadim Sahiban and may be even the Intizamia or the managing Committee. No particular defendant or plaintiff claims any particular interest for his person. The different sets of plaintiffs and defendants represent particular cumulative interests. In these suits no plaintiff or defendant has demanded any adjudication of his personal or individual rights, but all the suits mention the Pir Sahiban as one party who are cumulatively or jointly interested in the fruits of this litigation, or the Khadim Sahiban who also as one unit claim certain rights and reliefs. The third party also is alleged only to be either supporting the one or controverting the claims or the other party. Therefore the parties to this arbitration should be the Pir Sahiban as such, the Khadim Sahiban as such and the managing Committee as such. No particular Pir or Khadim or a member of the managing committee has any personal or individual right or claim in the property, and the rights of the different parties as I call them, i.e, the Pir Sahiban or the Khadim Sahiban or for that matter the managing committee does not arise for consideration in the suits, much less in the arbitration proceedings.

23. In the arbitration proceedings the Pir Sahiban were represented by one set of learned counsel, the Khadim Sahiban by another set of learned counsel and the Majlis Intizamia Conrmittee by a third learned counsel. Messrs S.N Dhar and A.N Raina have appeared for the Pirs, Messrs J.L Chowdhury and Sunder Lal for the Khadims and Mr. J.N Langar for the Intizamia Committee. The contention of Mr. S. Lal, therefore, that each individual plaintiff or defendant should have signed the arbitration agreement which was in the shape of the application is not at all correct. If the application is signed by a person representing the different interests, that would be a sufficient compliance with the provisions of S. 21. I would even go further. Under the General Clauses Act the word ‘person’ has been defined as ‘including any company or association of body of individuals whether incorporated or not. (S. 3(42)). A person will thus include not only an individual but even a body of individuals or an association of individuals whether they are incorporated or not. In our opinion even if the word ‘parties’ were to be understood as the word person, the definition of a person in the General Clauses Act would cover the different sets of claimants within the definition of the word person. It has been held in Bejoy Ranjan v. B.C Das Gupta, AIR 1953 Cal 289 that the word person in Article 226 should be interpreted in the sense in which it has been used in Section 3(42) of the General Clauses Act. Therefore although the State Medical Faculty is an unincorporated body of individuals, a writ can be properly issued against such a body in its official title and designation.

24. The words ‘parties interested’ have been the subject-matter of judicial comment. It has been held that parties interested are those who are interested in the result of the suit and need not be persons arraigned as defendants or plaintiffs. Even a defendant who is ex parte may be a person interested and any plaintiff or defendant who is very much present before the court in the suit may not be a person interested. The following authorities may be cited in this behalf:— Madan Lal v. Nabi Bakhsh, AIR 1947 Lah 177, Ishar Das v. Keshab Deo, ILR 32 All 657, Pitam Mal v. Sadiq Ali, ILR 24 All 229, Mahadeo Narayan v. Narayan Duttatraya, AIR 1928 Bom 248, Bankey Lal v. Chotey Miyan Abdul Shakur, AIR 1931 All 453, Sheodahin Chowdhury v. Dasrath Dubey, AIR 1934 Pat 19, Dwarka Nath v. Kedar Nath, AIR 1951 Pat 445, Mahomed Khalil v. Abdul Rahim, AIR 1925 Pat 810 and Raghunath Sukul v. Ramrup Rant, AIR 1924 Pat 33.

25. In AIR 1951 Pat 445 it has been laid down that it is not necessary that all the parties to a suit should concur in an application for an order of reference in order to make the submission valid; it is only necessary that all the parties who are interested in the subject-matter of the reference should join in the submission.

26. Similarly in AIR 1931 All 453 it has been held that all parties contesting the suit are not necessary parties to arbitration.

27. In AIR 1928 Bom 248 it has been held that all the parties interested mean all parties interested in the subject-matter of reference and not all parties in the suit.

28. Factually also this argument of Mr. S. Lal has not much force. He laid great stress on the fact that Pir Saif-ud-Din Khadim was not a signatory to the application for arbitration as some others also. On a perusal of the file it transpires that Pir Saif-ud-Din, Mohidin and Mohd. Khalil have by means of a power of attorney dated 15-7-60 appointed three persons—Attiquah, Yusuf Shah and Ghulam Hasan Makhdoomi as their attorneys. The arbitration applications have been signed by these attorneys whose statements have been recorded. Therefore it does not lie in the mouth of the learned counsel now to state that Pir Saifuddin and others were not parties to the arbitration agreement.

29. There is a further reason to hold that this argument of Mr. S. Lal has not got much weight behind it. All that S. 21 requires is that the parties interested should apply in writing to the court. It nowhere states that the application in writing should be signed by the parties. This point has been very clearly disposed of and considered by their Lordships of the Supreme Court in AIR 1963 SC 1685 wherein their Lordships have stated:—

‘In order to constitute an arbitration agreement within the meaning of Section 2(a) of the Arbitration Act, there must be a valid agreement to submit ‘present or future differences to arbitration’ and the agreement must be in writing and must be accepted by the parties. It is however not a condition of an effective arbitration agreement that it must be incorporated in a formal agreement executed by both the parties thereto, nor is it required to be signed by the parties”.

30. Though this was case for interpreting S. 2(a) of the Act, the language of that section and that of S. 21 is the same and the principles underlying both these provisions is exactly the same. Therefore the absence of signatures by any particular plaintiff or defendant on the arbitration agreement makes no difference and is of no consequence.

31. It is very pertinent to note, as has been remarked already, that the Pir Sahiban and the managing committee do not contest this award. It is only the Khadim Sahiban who are not satisfied with ft. Even though all the plaintiffs and defendants in the different suits may not have been signatories to the applications for arbitration, yet the different parties as categorized by us have been actively participating in the proceedings before the arbitrator. Each group was sufficiently represented and different counsel appeared for different group of persons involved in this litigation. The parties put in their objections and filed their documents also. All the three sets, i.e the Pirs Khadims and the Managing Committee nut in their written claims before the arbitrator, who after these written claims were preferred before him heard the learned counsel, then formulated the matters in difference with the agreement of the learned counsel for the parties, and adjudicate upon the matter which emerged for determination after perusing the written statements filed by each set of persons and each party as described above. Authorities are not wanting to support the view that when the parties interested take part in the proceedings before the arbitrator, they cannot be allowed to later on contest any want of formality in the appointment of the arbitrator and the order of reference.

32. In New India Assurance Co. Ltd. v. Dahnia Iron and Steel Ltd., AIR 1965 Cal 42 it has been held that if a party allowed an arbitrator to proceed with the reference without objecting to his jurisdiction or competence, it would not be subsequently heard to say that the award should be set aside on the ground that the arbitrator was not competent to decide the dispute in question. If an objection is taken, it must be taken at the earliest possible opportunity or at any rate, at an early stage of the proceedings. Failure to do so at any stage acts as an estoppel.

33. To the same effect are the observation made by Russel on Arbitration that failure to object to the authority of the arbitrator at the earliest possible opportunity acts as an estoppel.

34. In Ganesh Chandra Misra v. Artatrana Misra, AIR 1965 Orissa 17 it has been laid down that in the case of a party taking part in an arbitration proceeding after the expiry of four months, the principle of waiver and estoppel applies.

35. In the instant case all the parries, i.e, the Khadims Pirs and the Managing Committee placed their points of view before the arbitrator, argued their cases forcefully and on more than one date before the arbitrator. The arbitrator considered all the documents produced by the different parties as well as the arguments advanced by their learned counsel and then gave the award. The Khadims also as a party placed before the arbitrator all that they could possibly do. As is usual in such circumstances, each party expected that the award would be favourable to it. When the Khadims found that the award was not as favourable to them as they thought, they made a grievance of it before the District Judge. But before the passing of the award they were quite satisfied with the proceedings and none of them ever objected to either the application for arbitration being incomplete, the reference being not proper or the proceedings before the arbitrator being vitiated in any way. They have now come forward with hypertechnical pleas to get the award vitiated. They are estopped to do so from their own conduct and their active participation in the matter of referring the whole dispute to the arbitrator and in conducting the entire proceedings before him.

36. Mr. S. Lal argued that if there was some defect in the matter of referring the matter to arbitration, the whole proceedings of the arbitrator and the award were vitiated. Mr. S. Lal was asked to cite an authority which would cover the facts of the present case i.e, when the arbitration had been moved by the different parties to a litigation and any one or some of them had not signed the application for making the reference but all the parties had stated their respective cases before the arbitrator, had participated in the proceedings upto the last and after the award was given in such proceedings, whether it was available to any party who had been signatories to the arbitration application to get the whole award set aside when those persons who had not signed the arbitration application had no grievance against the award. Mr. S. Lal could not cite any authority nor can any be cited in favour of such an extreme proposition of law which is against all canons of substantial justice, equity and fair play. Therefore the main argument of Mr. S. Lal in this case also does not seem to us to have any weight behind it.

37. Then there was another argument of Mr. S. Lal that one of the Khadims Ali Shah had died during the pendency of the arbitration proceedings. This is a question of fact and the teamed District Judge has considered this point very elaborately and carefully and discussed the evidence of the witnesses produced in this behalf namely, Ghulam Mohd. Noor Din, son of deceased Saif-ud-Diu, Atiquallah and others. He has come to a definite finding that the story as propounded by the Khadims in this behalf is not correct. He has held that Ali Shah died after the arguments before the arbitrator were concluded. We have gone through this part of the finding of the learned District Judge but Mr. S. Lal has not been able to show anything wrong with this finding. We uphold this finding. Moreover Section 6 of the Arbitration Act states that no arbitration agreement shall be discharged by the death of any party thereto either as respects the deceased or any other party. This Section gives full protection to the proceedings of in arbitrator and the award made by him. The award of the proceedings before the arbitrator cannot be challenged because of the death of any party to the arbitration agreement. Reference may in this behalf be made to Sanday Patrick and Co. v. Ramrattan, 7 Ind Cas 590 (Sind) as also to Bowker v. Evans, (1885) 15 QBD 565.

38. Another argument advanced by Mr. S. Lal was that there were four separate suits which could not be disposed of by a single award. In this behalf he has invited our attention to I.G.H Ariff v. Bengal Silk Mills Ltd., AIR 1949 Cal 350. As would be clear from an earlier part of this judgment, there appears to be a patent fallacy this argument. We have made it abundantly clear that the four suits are in effect and substance the different offshoots of the same dispute, i.e, the management of the holy shrine of Makhdoom Sahib and the appropriation of income that would accrue to the shrine from different sources connected with one ceremony or the other. This is clearly borne out from the conduct of the parties themselves. When the mailer was referred to the arbitration of Mr. Siddiqui, he called upon the different sets of parties to furnish their claim wi writing and they did so. Then he formulated the matters in controversy between them, and adjudicated upon them according to his lights and the material before him. The sum and substance of the four suits and the contentions contained therein were consolidated and the entire mode of dispute was given a definite shape and form and then adjudicated upon. Therefore this authority has no application to the facts of the present case. In our opinion the award and the arbitration proceedings consolidating all the matters in Issue in the different suits were perfectly valid, proper and legal.

39. The last argument advanced by Mr. S. Lal was that the award was given beyond the four months provided under Schedule 1 rule 3 of the Arbitration Act. There has been some controversy between the parties as to when the arbitrator will be deemed to have entered upon the reference. The District Judge has held that the arbitrator entered upon the reference on 31st August, 1961. We do not agree with his view. The arbitrator first directed the parties to appear before him on 20th May, 61. In our opinion he will bp deemed to have entered upon this reference on that day, when he applied his mind to the dispute between the parties. The award has been given on 12th December, 61, which is obviously beyond four months as contained in schedule I. But this defect is cured by the provisions of S. 28 of the same Act. This section empowers the court to enlarge from time to time the time for making an award. If it thinks fit, whether the time for making the award has expired or not or whether the award has been made or not, as was conceded by all the learned counsel appearing in this case, the court has ample powers suo motu to extend time in fit cases.

40. Mr. S. Lal has in this connection referred to Sowaran Singh v. Municipal Committee, Pathankot, AIR 1963 Punj 427, but as the section itself indicates the court has ample powers to extend time in fit cases even after an award has been made. In this case the learned District Judge has categorically held:

“It cannot be denied that S. 28 of the Act gives unrestricted powers to the court to enlarge time to make the award irrespective of the fact whether time for making the award has passed or not or whether the award has been made or not provided it thinks fit. In this case I may be permitted to remark that even if Mr. Siddiqui had not made the award within time, I personally feel that this was a fit case in which the court would have exercised its discretion in extending the time in accepting the award even after the expiry of the time”.

41. In this behalf the following authorities may be cited:— Narsingh Das Hiralal Ltd. v. Bisandayal Satyanarain Firm, AIR 1954 Orissa 29; AIR 1965 Orissa 17.

42. Discretion in extending time has been exercised by the trial coint and we think it has been properly exercised by it. Regard being had to the facts of this case, we confirm that finding and the defect of the award of not being made within the statutory period is condoned and the award is upheld.

43. The result is that we uphold the award made by Mr. Siddiqui on 12-12-61 and make it a rule of the court. We find no force in this appeal and dismiss it with costs.

44. S. Murtaza Fazl Ali, J.:— I agree.

KI/AGJ/R.G.D

45. Appeal dismissed.