P L D 1966 Dacca 145 (PLP)

that the suit be decreed ex parte in terms of the award which swill form part of the decree." . Then again section 17 of the Arbitration Act provides: "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 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." Though section 17 of the Arbitration Act provides that a Court can pass an award after refusing any objection to the award 'but in this case the Court has failed to consider the objection filed. We do not also find that the learned Subordinate Judge has complied with the other provisions of section 17 of the Arbitration Act. Section 17 requires that before passing all award the Court shall determine first that there is no cause to remit an award or any of the matters referred to Arbitration for reconsideration or to set aside the award and thereafter the Court shall have to take into consideration such objection as filed, and after refusing the same shall proceed to pronounce judgment in accordance with the award. But we do not find that the learned Subordinate Judge while passing the ex parte decree has complied any of the provisions of this section with. I Now coming to the decision relied on by the learned Advocate for the respondent, find that a Division Bench of the Patna High Court in A I R 1924 Pat. 603 observed that where an award was given by Arbitrators with the intervention of the Court and the defendants after filing objections were absent on an adjourned date and the Court passed the decree in terms of the award and dismissed the application under Order IX, rule 13, to set aside, the award, no appeal lay against such order and that section 104 (f) did not apply as the arbitration was through the intervention of the Court. In the present case the Arbitration was not through the intervention of the Court. , It has been claimed by the petitioner that no notice of the award was served on him. It is further seen that the objection has not been disposed of by learned Subordinate Judge as required by section 17 of the Arbitration Act. So, in our opinion, the case relied on by the learned Advocate for the respondent has no application in the facts and circumstances of the case. Having regard to the facts and provisions of law, we are of opinion that the provision of Order IX, rule 13, will apply to the present case. On the merits, we have already found that the petitioner has been able to make out a case under Order IX, rule 13, of the Code. We accordingly allow the appeal, set aside the judgment and order complained of and allow the application under Order IX, rule 13, of the Code and set aside the ex parte decree and restore the suit to file. We direct the learned Subordi nate Judge to proceed with the suit in accordance with law. Appellant will pay two Gold Mohors to the respondent as compensation. A. S. CHOWDHURY, J.‑I agree. K. B. A. Appeal accepted.