' MUHAMMAD AFZAL LONE, J.-Riaz Sabir respondent brought a suit against the appellant for specific performance of an agreement for sale and for permanent injunction. During the course of its hearing, the parties moved an application before the learned Civil Judge under section 21 of the Arbitration Act, for decision of their dispute through arbitration. In pursuance whereof, he recorded their statement and on its basis appointed Muhammad Sharif Bhutta and Muhammad Tufail as arbitrators and Ch. Muhammad Roshan as Umpire. On 5-6-1982, the latter filed the award in the Court. Under its order, dated 12-6-1982, made in the presence of the parties, and their learned counsel, the learned trial Court directed that objections to the award would be filed within 30 days.
2. It is discernible from the record that on the same date, when the envelope containing the award had been opened by the Court, the appellant submitted an application to the learned trial Court purportedly under section 11 of the Arbitration Act whereby for the reasons stated therein it was prayed that the award in question be not taken into consideration and the Umpire removed. In reply to this application, the respondent controverted all the allegations and sought its dismissal.
On 13-11-1982 the appellant filed another application under sections 30 and 33 of the Arbitration Act, paying that the award be set aside. By his subsequent application, dated 3-3-1983, the appellant sought permission to in his previous application, additional grounds against the award.
Earlier on 18-7-1982 the respondent moved the learned trial Court under sectioincorporaten 17 of the Act, to make the award rule of the Court.
3. The learned trial Court disposed of all these applications by a consolidated order, dated 24-11- 1983. The application under section 11 was turned down on the ground that it was presented after the award. The objections under section 30 were held as barred by time. Likewise, the application for incorporation of additional grounds was also reject. Consequently, the respondent's application under section 17 was allowed and the award made rule of the Court. The learned trial Court's refusal to set aside the award has been called in question by the unsuccessful defendant through this appeal.
4. It is to be seen that out of the orders which may be passed under the Arbitration Act, those against which an appeal lies have been enumerated in section 39 of the Act and no other order is appealable. We, however, notice that in the memo. Of appeal, there is citation of section 95, C. P. C.
And the decree which followed the pronouncement of judgments, making the award rule of the Court, has also been assailed. Section 17 renders an appeal against such a decree as incompetent except on the ground that it is in excess of the award or not in accordance therewith. But such a situation does not obtain in this case. There can be no dispute that the order refusing to set aside the award is appealable under clause (vi) of section 39. Obviously, the appeal against the impugned order, lies under section 39 ibid and not under section 96, C. P. C. But, mere mention of section 96, C. P. C., instead of section 39 of Arbitration Act, in the memo. Of appeal, however, cannot denude the appellant of his right of appeal. We, therefore, treat this appeal as one 4 under section 39 and from the order dated 24-11-1983. The challenge thrown to the decree, is merely an act of supererogation. Even the learned counsel for the respondent concedes that this appeal is competent under section 39.
5. We have heard the learned counsel for the parties and examined the record. As already observed the learned trial Court did not go into the merits of the objections filed by the petitioner for setting aside the award, but rejected the same on the ground of limitation. The period of limitation for filing such objections is 30 days from the date of filing the award. Article 158 of the Limitation Act so provides. There should be no controversy on the issue, that the parties had notice of the filing of the award, envisaged by section 14 of the Arbitration Act. This is evident from the proceedings recorded by the learned trial Court on 12-6-1982. (here is, thus, no doubt that the objections which were preferred by the appellant under his application, dated 13-11-1982, and the additional ground dated 3-3-1983, after 30 days of notice of filing of the award, were patently barred by time. The findings recorded by the learned trial Court in this behalf, are not open to any exception. The contention raised by the appellant's learned counsel, however, was that though the application, dated 12-6-1982 was shown to have been moved under section 11, ibid, removal of the Umpire but practically it embodied all the objections which the appellant had to press into service for impeaching the award. He drew our attention to the contents of the application to urge that it is of composite nature, under which not only the Umpire's removal was sought but on the strength of certain grounds, the validity of the award was also called in question. It was forcefully submitted even if, the provisions of section 11 could not be invoked, that did not warrant rejection of the application in its entirety. He submitted, that the learned trial Court should have adverted to the contents of the application, treated the recitals made in it questioning the legality of the award, as objections under section 30 of the Act, and proceeded to dispose of the same on merits. In assailing the impugned order, the appellant's counsel went on to argue, that the learned trial Court only attended to the objections filed subsequently but failed to decide those which were referred to in the application under section 11, filed within the period of limitation.
5. In reply to these submissions, the sole argument advanced one behalf of the respondent was that the application dated 12-6-1982 was never intended by the appellant to be considered as objections under section 30 and in fact he never pressed it.
6. We have carefully gone through the application, dated 12-6-1982. It is stated therein that no notice was served on the appellant by the arbitrators. Certain allegations have also been levelled against the Umpire and he is accused of being in league with the respondent. It is further averred that the award was made at his back the appellant was not given any opportunity to present his case and was thus, condemned unheard. Alongwith the prayer for removal of the Umpire, there is also a request to ignore the award. It needs no emphasis that a litigant has only to state the necessary facts and it is for the Court to apply the correct law. In this respect the Court is to be guided by the contents of the application and not by the citation of the particular section, in its heading. Section 11 ibid deals with the powers of the Court to remove an arbitrator or Umpire and section 30 lays down the grounds on which an award can be set aside. After the perusal of the application in question, we, entertain no doubt that apart from attracting the provisions of section 11, it can well be construed an embodiment of objections under section 30 of the Act. Even the learned counsel for the respondent could not refute it.
7. It may be added that the procedure to be followed for setting aside the award is provided by section 33. Under this section, a party desirous of challenging the existence or validity of an agreement or an award must apply to the Court. Though this section does not make mention of setting aside of an award but the consequence of challenging the award is the same. If the grounds of challenge are established , the award has got to be set aside. In our opinion, the application, dated 12-6-1982 fully merits to be treated as one under section 33 of the Act. Turning now to section 17 we find that it is only when no application within the period specified by Article 158 is made or the application so made is refused that the Court can proceed to announce the judgment according to the award. It is clear to us that in the instant case D the appellant's application incorporating objection to the award, has not been disposed of by the learned trial Court in accordance with law. As stated earlier these objections have not been even touched upon in the impugned order. In this behalf, therefore, it cannot be said that there is a lawful refusal of the application.
8. As regards the argument of the respondent's learned counsel, the record is not suggestive of any indication on the part of the appellant, not to press the objections set down in the application, dated 12-6-1982 and to abandon the same. On the other hand, in the application dated 13-11-1982, there is a clear reference of the earlier application. The contention raised by the learned counsel, therefore, has no merit and is rejected. We have already maintained that after filing of the award, when the application under section 11 came up for hearing before the Court, it was duty bound to dispose it of in the light of the provisions of law really applicable thereto. The learned trial Court has failed to do so. The order under appeal, therefore, cannot be upheld.
' For the foregoing reasons, this appeal is accepted, the impugned order set aside and the to the learned trial Court to dispose of the objections incorporated in application, dated 12-6-1982 expeditiously and in accordance with law. The parties are left to bear their own costs and directed to appear before the learned District Judge on 29-2-1984, who shall assign case to a Court of competent jurisdiction subordinate to him.