JUDGMENT S.R. Das, J. - In this application, Mrs. Aisha Ariff prays for the following reliefs: (1) A declaration that the alleged award published by Ameer Ali J. as umpire on 8th August 1944 and signed on 3rd September 1944 was and is alleged, invalid and of no effect. (2) A declaration that there was no submission or arbitration agreement and that the umpire had no jurisdiction to act as such umpire. (3) That if necessary the said award be set aside or taken off the file. (4) That an injunction be passed restraining the other parties to the said award from enforcing or acting on the same and from having any decree passed thereon. 2. Before dealing with the points which require to be considered in this application, it is necessary to notice the facts and circumstances giving rise to the several suits and proceedings with which this application is concerned and also the very peculiar course of procedure which they have taken. 3. One Golam Hossain Cassim Ariff and Ibrahim, his son by his pre-deceased first wife, used to carry on a business in partnership under the name and style of Hassim Ariff Brothers and Company. This firm was the managing agent of Bengal Silk Mills Co. Ltd., a private limited company. The capital of this company is divided into 400 shares out of which the said Golam Hossain Cassim Ariff owned 68 shares. It is alleged by the applicant but denied by the respondent company that the said Golam Hossain Cassim Ariff from time to time advanced large sums to the respondent company to help it in its financial difficulties and that the respondent company acknowledged such sums as payable by it to Golam Hossain Cassim Ariff. In its balance sheet for the year ending 30th November 1936 passed by the shareholders of the respondent company on 8th July 1937 the respondent company acknowledged its indebtedness to Golam Hossain Cassim Ariff in the sum of Rs. 2,77,010-10-7. 4. On 1st January 1937, Golam Hossain Cassini Ariff died leaving him surviving Ibrahim his son by his predeceased first wife, the applicant Aisha Ariff his second wife and Ismail, Ahmed and Azam his 3 sons by his said second wife, the two last named sons being then and still minors. 2,77,010-10-7. 4. On 1st January 1937, Golam Hossain Cassini Ariff died leaving him surviving Ibrahim his son by his predeceased first wife, the applicant Aisha Ariff his second wife and Ismail, Ahmed and Azam his 3 sons by his said second wife, the two last named sons being then and still minors. Prior to his death, Golam Hossain Cassim Ariff made and published his will directing that his estate should be distributed amongst his heirs according to Mahomedan law. On 2nd August 1939 probate of this will was issued to Ibrahim Ismail and Aisha Ariff the executors and executrix named in the will. 5. It is said that after the death of Golam Hossain Cassim Ariff the company paid Rs. 17,149-14-10 to his creditors out of the amount due to him. It is also alleged that after the death of Golam Hossain Cassim Ariff, Ibrahim continued the firm of Hassain Ariff Brothers and company and managed the mills of the respondent company. 6. On 21st December 1939, Ismail and Aisha Ariff representing the estate of Golam Hossian Cassim Ariff filed in this Court Suit No. 2261 of 1939 against the Bengal Silk Mills Co., Ltd., for the recovery of Rs. 2,77,010-10-7 with interest thereon. As Ibrahim did not join as plaintiff, he was impleaded as a defendant in that suit. The respondent company filed its written statement denying all liability. Ibrahim did not enter appearance in that suit. 7. On 2nd January 1940, Bengal Silk Mills Co. Ltd., filed Suit No. 1 of 1940 in this Court against Aisha Ariff, Ismail and Ibrahim as representing the estate of Golam Hossain Cassim Ariff for recovery of Rs. 6 lacs and accounts. Aisha Ariff and Ismail filed their written statement denying liability. Ibrahim did not enter appearance in this suit also. 8. On 2nd January 1940, Ismail and Aisha Ariff as executor and executrix filed Suit No. 4, of 1940 in this Court against Sulaiman Cassim Ariff and Yusuff Cassim Ariff as the mutwallis of the wakf created in 1895 by Hazi Kassim Ariff to recover Rs. 19,093 for moneys alleged to have been lent and advanced by Golam Hoasain Cassim Ariff to the said wakf estate. Ibrahim who declined to join as plaintiff was made a defendant in this suit also. 9. On 26th October 1940, Ibrahim died leaving his widow Dorothy Jane Ariff and two daughters Amina and Zamina. 10. 19,093 for moneys alleged to have been lent and advanced by Golam Hoasain Cassim Ariff to the said wakf estate. Ibrahim who declined to join as plaintiff was made a defendant in this suit also. 9. On 26th October 1940, Ibrahim died leaving his widow Dorothy Jane Ariff and two daughters Amina and Zamina. 10. On 12th February 1941, Dorothy Jane Ariff the widow of Ibrahim filed in this Court suit No. 213 of 1941 against the heirs of Golam Hossain Cassim Ariff and those of Ibrahim for the administration of the estate of Golam Hossain Cassim Ariff and of the estate of Ibrahim, By an order made in this suit Mr. S.K. Sawday was appointed receiver of the whole estate of Golam Hossain Cassim Ariff. 11. On 17th March 1941, the parties to the said two suits No. 22661 of 1939 and No. 1 of 1940 entered into a written agreement whereby they agreed to refer the disputes in the said two suits to the arbitration of Mr. J.N. Basu and Haji Mahomed Ismail Ariff who were to make their award within a month. It was also agreed that in case of difference of opinion in any matter or in case they left any matter undecided, such matter would be referred to Ameer Ali J. as umpire. 12. By an order made on 18th March 1941, the two suits, No. 2261 of 1939 and No. 1 of 1940 were consolidated and the matters in dispute therein were referred to the arbitration of Mr. J.N. Basu and Haji Saheb who were by that order directed to make their award within 2 months. 13 There was a separate agreement in writing between the parties to Suit No. 4 of 1940, for reference of the disputes in that suit to the arbitration of the same persons on terms similar to those of the agreement relating to Suits No. 2261 of 1939 and No. 1 of 1940. By an order made in that suit No. 4 of 1940, the disputes therein were referred to the arbitration of Mr. J.N. Basu and Haji Saheb. 14. By an order made in that suit No. 4 of 1940, the disputes therein were referred to the arbitration of Mr. J.N. Basu and Haji Saheb. 14. Three points are to be noted namely: (i) that there were two separate arbitration agreements and two separate orders, one in the consolidated suits No. 2261 of 1939 and No. 1 of 1940 and the other in suit No. 4 of 1940; (ii) that neither of the two orders of reference made any provision for reference of any matter to Ameer Ali J. as umpire; and (iii) that there was no arbitration agreement or order for reference to arbitration of any dispute in Suit No. 213 of 1941. 15. Mr. J.N. Basu could not act as arbitrator on account of his ill-health and accordingly by an order made by this Court in the consolidated suits on 5th March 1942, Sir Nazimuddin was appointed as arbitrator in the place of Mr. J.N. Basu and the time for making the award was extended to 31st May 1942. By another order made on 1st June 1942, the time for making the award was further extended to 31st August 1942. I take it, although I am not quite clear about it, that similar orders were made in Suit No. 4 of 1940. 16. Between May and July 1942 the arbitrators held several sittings and examined certain books of account. 17. On 5th August 1942, Haji Saheb made an award stating that the arbitrators had disagreed and that in his opinion the claims of both parties in the Consolidated Suits Nos. 2261 of 1939 and 1 of 1940 should be dismissed. As regards the claim in Suit No. 4 of 1940, Haji Saheb was of opinion that it should not be allowed as it exceeded the income of the wakf estate, and also stated that the parties had agreed that that suit should he dismissed It does not appear that Haji Saheb made any separate award in connection with the last mentioned suit. 18. This award is said to have been submitted to Ameer Ali J., at or about the time it had been made and was sent to Messrs. B.N. Basu & Co., Solicitors for Ismail and Aisha Ariff for being filed in Court. On 26th August 1942, Messrs B.N. Basu & Co., wrote a letter to Mr. 18. This award is said to have been submitted to Ameer Ali J., at or about the time it had been made and was sent to Messrs. B.N. Basu & Co., Solicitors for Ismail and Aisha Ariff for being filed in Court. On 26th August 1942, Messrs B.N. Basu & Co., wrote a letter to Mr. S.K. Banerjee one of the Assistant Registrars of this Court submitting that as the arbitrators had differed it was not necessary to file the award of any arbitrator and that the matters in difference would have to be decided by Ameer Ali J. and his award only was to be filed. The letter concluded with a request to the Assistant Registrar to place the letter before the learned Judge for his directions. The award or report of Haji Saheb was returned to the Assistant Registrar. No direction appears to have been given on this letter. 19. After about a year, to wit on 17th July 1943, Sir Nazimuddin made an award stating that the arbitrators had differed and that in his opinion Bengal Silk Mills Co., Ltd., should pay to the estate of Golam Hossain Cassim Ariff the sum of rupees two lacs, with interest thereon at 6% per annum from the date of the award in respect of the claim in Suits Nos. 2261 of 1939 and 1 of 1940. He did not in this award refer to Suit No. 4 of 1940 or make any separate award in respect of the claim in that suit. 20. In sub-paragraph (c) of paragraph 14 of the affidavit in opposition affirmed by Yussuf Cassim Ariff, one of the Directors of Bengal Silk Mills Co., Ltd., it is alleged that Mr. S.K. Sawday, receiver acting on behalf of the petitioner, submitted a note for the consideration of the umpire in respect of the report by the two arbitrators and notified to the parties to appear before the umpire on the 20th at 10 a.m. The applicant and Ismail deny that Mr. Sawday had any authority to act on their behalf. It does not appear when Mr. Sawday submitted his note or who directed him to submit the note or give notice to the parties or on the 20th of which month the parties were required to attend before the umpire. Aisha Ariff and Ismail deny having received any notice either from the umpire or from Mr. It does not appear when Mr. Sawday submitted his note or who directed him to submit the note or give notice to the parties or on the 20th of which month the parties were required to attend before the umpire. Aisha Ariff and Ismail deny having received any notice either from the umpire or from Mr. Sawday. 21. Nothing appears to have happened for over a year and until 2nd August 1944, when the three Suits Nos. 2261 of 1939, 1 of 1940 and No. 4 of 1940 appeared in the daily list of Ameer Ali J. The Court minutes of that day relating to these suits are to the following effect: Mr. J.C. Gupta with Mr. M.S. Salehji appears for the Bengal Silk Mills. Mr, S.K. Sawday appears as the Receiver to the estate of G.H.C, Ariff. The Court: All the three matters to appear in the list on Friday next at the top of the list. 22. Pursuant to the above directions the three suits appeared in the list on Friday, 4th August 1944, but do not appear to have been reached. The three suits next appeared in the fist on 8th August 1944. The proceedings of that date were recorded in the Court minutes as follows: The counsel for the parties appear as before. The Court dictates a comprehensive judgment and decree covering all the four matters. (See S.H Notes of Mr. Sinha). 23. On 14th August 1944, Messrs. B.N. Basu & Co., attorneys for the applicant put in a requisition for the drawing up of the decree. 24. On 3rd September 1944, Ameer Ali J., did two things, namely he signed the transcript copy of the "judgment" delivered on 8th August 1944, and also an award. 25. On 11th November 1944, a draft of the decree was issued from the Court offices. This draft was instituted in the three suits Nos. 2261 of 1939, 1 of 1940 and 4 of 1940, and Appeal No. 484 of 1940 This appeal No. 484 of 1940 arose out of a suit for rent filed by the Bengal Silk Mills Co., Ltd., against the estate of Golam Hossain Cassim Ariff and was pending on the appellate side of this Court. The draft recited the order of reference, the order appointing Sir Nazimuddin as arbitrator in the place of Mr. The draft recited the order of reference, the order appointing Sir Nazimuddin as arbitrator in the place of Mr. J.N. Basu, the fact of the difference of opinion between the arbitrators and the reference of the matters in dispute to the umpire, the award made by the umpire and then proceeded to state that the three suits and the appeal came on for judgment on the said award before Ameer Ali J., and that it was declared that the said award ought to be carried into effect and the same was ordered and decreed accordingly. 26. On 14th November 1944 the settlement of the draft decree was adjourned. On 18th November 1944, Messrs. B.N. Basu & Co. returned the draft with certain alterations and a marginal note to the following effect: There was no bearing. The award has not been filed and there was no judgment on award. The question is whether this decree can be drawn up. 27. On 22nd November 1944, a representative of Messrs B.N. Basu & Co. appeared before the Master and intimated that the attorneys had been misled into putting in a requisition for drawing up of the decree and that they did not desire any decree to be drawn up. The Master adjourned the matter sine die with the following remarks: Messrs B.N. Basu & Co., who gave requisition for drawing up of the decree say that they were misled and in their view no decree was made and that they do not want the decree to be drawn up. No other party is present. Adjourned sine die at the instance of Messrs. B.N. Basu & Co. 28. On 22nd November 1944, Messrs B.N. Basu & Co., acting for Aisha Ariff issued the present notice of motion intimating that on 29th November 1944 an application would be made on behalf of Mrs. Aisha Ariff for certain orders the material clauses of which I have already mentioned. This notice of motion appears from the acknowledgments endorsed on the back thereof and the affidavit of service, to have been served on the same date. 29. I am told by Learned Counsel for the applicant, that on 23rd November 1944, the applicants' solicitors gave a requisition for the filing of the award in Court. This notice of motion appears from the acknowledgments endorsed on the back thereof and the affidavit of service, to have been served on the same date. 29. I am told by Learned Counsel for the applicant, that on 23rd November 1944, the applicants' solicitors gave a requisition for the filing of the award in Court. On the same day, the petition affirmed on the previous date was filed in Court by Learned Counsel and an interim order was made by me in terms of prayer 4 of the petition which I have already set out above. 30. On 25th November 1944, both the ''judgment" and the award were filed on record in the Court-office. 31. On the returnable date, i.e., on 29th November 1944 directions were given for the filing of the affidavit in opposition and the affidavit in reply and the application was adjourned for a fortnight. After another adjournment the application appeared in my List on 2nd January 1945. When the application was called on for the first time on that date no one appeared and it was passed over. When it was called on for the second time Learned Counsel for the applicant and that for the supporting respondents appeared, but no one appeared for the contesting respondent, Bengal Silk Mills Co., Ltd. The application was consequently heard ex parte. After hearing Learned Counsel in support of the application I made an order setting aside the impugned award for reasons stated in a short judgment that I delivered on that day. On the next day, the application was mentioned before me and by consent of parties the order that I had made was, upon certain terms as to payment of costs, recalled and the application was restored to the list for re-hearing. 32. I have now had the advantage of hearing elaborate and indeed very able and lucid arguments of Learned Counsel appearing for all parties. Nothing that I have heard, however, induces me to change my previous opinion that what had been done by Ameer Ali J., on 8th August 1944 and 3rd September 1944, cannot be supported as an award of an umpire. Nothing that I have heard, however, induces me to change my previous opinion that what had been done by Ameer Ali J., on 8th August 1944 and 3rd September 1944, cannot be supported as an award of an umpire. The reasons, some of which I adverted to in my previous judgment and each of which in my opinion is sufficient to vitiate the award, may be shortly stated as follows: (1) There was no order of Court referring any dispute in any of the suits to Ameer Ali J. as umpire. (2) An award made by Ameer Ali J. under the written arbitration agreement deciding the disputes forming the subject-matter of several pending suits without an order of reference by Court cannot be given effect to or acted upon either under O. 23, R. 3, Civil P.C., or under the Arbitration Act. (See Dekari Tea Co. Ltd. v. The India General Steam Navigation Co. Ltd., 25 C.W.N. 127 : (A.I.R. 1921 Cal. 238) followed in Amar Chand Chamaria Vs. Banwari Lall Rakshit and Others, AIR 1922 Cal 404 . (3) The time limited by the agreements or by the orders of Court or under the Arbitration Act for the making of the award by the umpire had expired long before 8th August 1944. (4) No notice appears to have been given by the umpire to the applicant or her sons and certainly no such notice as would entitle him to proceed ex parte. There is nothing to show that Mr. S.K. Sawday had any authority to represent the applicant or her sons. The mere fact that Mr. Sawday had been appointed receiver in Suit No. 213 of 1941 and might have championed her cause in that suit does not vest in him any authority to represent the applicant or her sons before the umpire dealing with disputes in quite different suits. According to the minutes, this Sawday appeared only as the receiver. (5) The umpire has purported to decide matters which had not been referred to arbitration either by the arbitration agreement or by the orders of reference, e.g., the disputes in the rent appeal No. 484 of 1940. It is difficult to estimate how his views on the disputes in that matter affected his views on the disputes in the other matters and to sever the award by accepting one part and rejecting the other. It is difficult to estimate how his views on the disputes in that matter affected his views on the disputes in the other matters and to sever the award by accepting one part and rejecting the other. (6) There being separate suits, separate arbitration agreements and separate orders of reference by Court, it was irregular for the umpire to make one single consolidated award. (See Hellaby v. Brown, (1857) 1 H. & N. 729 : (5 W.R. 490).) 33. When I put some of the above reasons before the Learned Counsel for the company he very frankly conceded that it was difficult for him to support what Ameer Ali J. had done as an award of an umpire. His main argument was directed to impugn the maintainability of the present application and was based on two separate grounds which it is now necessary for me to consider. 34. The first ground is that the decision of Ameer Ali J. was not an award, although it might be in the nature of an award. Great stress is laid on the opening sentence of the observations made by the learned Judge on 8th August 1944, which has been referred to as "judgment" and which was to the following effect: This matter has been left to me by the parties appearing for my final decision as a judge as it was originally left to me as umpire. This observation, it is said, clearly indicates that the matter was left to Ameer Ali J. as a Judge and that his decision, although he did not hear evidence or proceed in a formal way, was a judgment and not an award. The applicant understood it as a judgment, for, through her solicitors, she gave a requisition for the drawing up of a decree. The argument is that the parties agreed to accept the Judge's decision as final and thereby constituted the Judge a quasi-arbitrator. The effect of such an agreement, it is urged, is to take the proceedings out of the ordinary course of procedure and to convert them into proceedings extra cursum curiae. The decision, given by the Judge in such circumstances, is not an award but is yet final and is unappealable and cannot be questioned in any way. The effect of such an agreement, it is urged, is to take the proceedings out of the ordinary course of procedure and to convert them into proceedings extra cursum curiae. The decision, given by the Judge in such circumstances, is not an award but is yet final and is unappealable and cannot be questioned in any way. Reliance is placed, in support of this argument, on the well-known cases of Harrison v. Wright, (1845) 13 M. & W. 816 : 153 E.R. 342, James White v. Duke of Bucclenct, (1866) L.R. 1 H.L. (SC) 70, Burgess v. Morton, (1896) A.C. 136 : (65 L.J.Q.B. 321). Reference is made to the observations of Lord Halsbury L.C., at p. 138 of the report of the last mentioned case which is to the following effect: My Lords, it bas been held in this House that where with the acquiescence of both parties a Judge departs from the ordinary course of procedure and, as in this case, decides upon a question of fact, it is incompetent for the parties afterwards to assume that they have then an alternative mode of proceeding and to treat the matter as if it had been beard in due course. To the like effect are the following observations of Lord Watson at p. 141: There are several decisions of this House, in cases coming from Scotland, which appear to me to affirm that the judgment of a Court below, pronounced extra cursum curica, is in the nature of an arbiter's award, and that, as a general rule at least, no appeal from it will lie. My attention has also been drawn to several decisions of the Courts in India, namely, Chinna Venkatasami Naicken v. Venkatasami Naicken, 42 Mad. 625 : (A.I.R. 1920 Mad. 800); Madan Mohan Gargh Vs. Munna Lal and Others and AIR 1937 224 (Oudh) . 35. Three can be no question about the soundness of the principles enunciated in the decisions mentioned above. The question is whether those principles are applicable to the facts and circumstances of the case now before me. It is necessary to examine the facts a little more closely. I have already referred to the two arbitration agreements, to the two orders and the two dissentient awards of the two arbitrators. Nothing further appears, on the materials before me, to have taken place until 26th August 1942 when B.N. Basu & Co. It is necessary to examine the facts a little more closely. I have already referred to the two arbitration agreements, to the two orders and the two dissentient awards of the two arbitrators. Nothing further appears, on the materials before me, to have taken place until 26th August 1942 when B.N. Basu & Co. wrote a letter to the Assistant Registrar submitting that Ameer Ali J. should be requested to make his award. Again, there appears to be a hiatus for 2 years until 2nd August 1944, when the suits appeared in the daily list of Ameer Ali J. on 8th August 1944. Ameer Ali J. delivered what has been called his judgment. I have set out above the minutes of proceedings of those dates. In his "judgment" the learned Judge, after making the opening observation which I have quoted, proceeded to consider the two awards or reports and concluded as follows: In other words, it seems to me that the result arrived at by the Haji Saheb and based on data and reasons which be has set out is proper and it is also my conclusion. Then the learned Judge mentioned the conclusions seriatim. On 3rd September 1944 the learned Judge signed this "judgment" as well as an award. The award is intituled, in the matter of Arbitration Act, 1940 and in the matter of Suits Nos. 2261 of 1939, 1 of 1940, 4 of 1940 and appeal No. 484 of 1940." The recitals in this award clearly indicate that Ameer Ali J. was acting as umpire. I cannot think that at least on 3rd September 1944, when he signed the "judgment" and the award the learned judge purported to act in two separate capacities. It is unreasonable to treat the two things as separate. In my judgment the two things must be taken together. In the facts and circumstances of these cases I am constrained to hold that Ameer Ali J. acted as umpire and published his award orally on 8th August 1944, and drew up the formal award in writing on 3rd September 1944. I regard the "judgment" of 8th August 1944, as reasons given by Ameer Ali J. for his award and the award signed on 3rd September 1944 as the formal expression of the conclusions arrived at by him as the umpire. 36. I regard the "judgment" of 8th August 1944, as reasons given by Ameer Ali J. for his award and the award signed on 3rd September 1944 as the formal expression of the conclusions arrived at by him as the umpire. 36. The difficulties in the way of the company in establishing that Ameer Ali J. acted as a Judge are many and some of them may be stated as follows: (a) The case sought to be made by Learned Counsel is not made out in his clients' affidavit. Indeed the affidavit proceeds on the basis that Ameer Ali J. was the umpire, acted as such and made an award. The company cannot be permitted to make a case which is inconsistent with the case in the affidavit. (b) That the reference to arbitration not having been formally superseded, Ameer Ali J. had no jurisdiction to deal with and determine the suits as Judge. (c) The procedure extra cursum curiae does not appear to have ever been applied to proceedings not pending before the particular Court, the Judge of which is constituted the quarsi-arbitrator. The Rent Appeal No. 484 of 1940 was pending before the appellate side of this Court and the party could not possibly, by their own agreement alone, authorise Ameer Ali J to act as a Judge in disposing of that appeal extra cursum curiae or otherwise. (d) In the opening sentence of the "judgment" it is stated that the matter had been left to the decision of Ameer Ali J. as a Judge by "the parties appearing". From the Court minutes which I have quoted in extenso it does not appear that the applicant or her sons appeared on those dates. (e) Under the Original Side Rules, the parties having attorneys on record cannot appear in person or by an agent except the attorneys or advocate briefed by the attorneys. Mr. S.K. Sawday does not appear to be entitled to plead on the original side as advocate nor does he appear to have been briefed by the attorneys. He cannot be said to be an "authorised agent" within the meaning of the Code of Civil Procedure. Indeed he appeared only as receiver. 37. Mr. S.K. Sawday does not appear to be entitled to plead on the original side as advocate nor does he appear to have been briefed by the attorneys. He cannot be said to be an "authorised agent" within the meaning of the Code of Civil Procedure. Indeed he appeared only as receiver. 37. For reasons stated above, I am bound to hold Ameer Ali J. acted as umpire and made an award for reasons stated in what has been called the "judgment" delivered on 8th August 1944, and signed on 3rd September 1944, along with the formal award in writing. He proceeded on the footing and assumption of a subsisting umpirage. Having regard to all the circumstances I cannot hold that all the parties agreed to constitute the learned Judge a quasi-arbitrator with power to proceed extra cursum curiae with suits and proceedings, one of which, at any rate, was not pending before him. In my judgment, the decision of Ameer Ali J cannot he regarded as anything but what it purports to be, namely, an award of an umpire. I have already held that, as an award, this decision cannot, for reasons already stated, be possibly sustained. 38. The second ground urged by Learned Counsel for the respondent company is that assuming that the decision of Ameer Ali J. is an award, this application is premature inasmuch as the award had not been filed in Court at the date of this application. In support of this contention reliance is placed on the cases of Ratanji Virpal and Co. Vs. Dhirajlal Manilal, (1942) 44 BOMLR 175 and Bengal Jute Mills Vs. Jewraj Heeralal, AIR 1944 Cal 304 , In my opinion, these cases are distinguishable. 39. In the first place in both those cases the award had not been filed in Court at all, even upto the dates when the cases were disposed of. In the case before me, the applicant through her attorneys issued a notice of motion on 22nd November 1944, intimating that an application will be made on 29th November 1944. It has been recently re-affirmed by the Court on appeal in Shree Chand Daga Vs. In the case before me, the applicant through her attorneys issued a notice of motion on 22nd November 1944, intimating that an application will be made on 29th November 1944. It has been recently re-affirmed by the Court on appeal in Shree Chand Daga Vs. Sohanlal Daga and Others, AIR 1943 Cal 257 , that the taking out of a notice of motion is not the making of an application but is a mere warning that an application will be made on a future date named in the notice. In this case the date fixed for the making of the application was 29th November 1944. The award had been actually filed in Court on 25th November 1944, i.e., before the date of the application. If the matter rested here, then the two eases cited by Learned Counsel would be of no assistance to his client. The petition, however, is complicated by the fact that on 23rd November 1944, Learned Counsel for the applicant filed the petition in Court and obtained an interim in-junction. No order could be made by the Court unless an application had been made to it. Therefore, it must be held that an application was made to the Court on 23rd November 1944, before the award had been filed in Court. But this limited application was in aid of the main future application about which the applicant had on 22nd November 1944, given warning and the making of which she had by the notice fixed for 29th November 1944. This limited application was not for setting aside the award but for an interim injunction pending the proposed application for setting aside the award. This limited application does not appear to me to be hit by the decisions in the two cases I have been referred to. 40. In the second place the main application, in so far as it prays for a declaration that there was no submission or arbitration agreement and that the umpire had no jurisdiction to act as such umpire was clearly maintainable even if the award had not been filed. Indeed Chagla J. at pp 453-454 of the report of the Bombay case observed as follows: It is clear that under sub-s. (2) the phrase 'the Court in which the award under the arbitration agreement may be filed' has reference only to proceedings in connection with the arbitration agreement. Indeed Chagla J. at pp 453-454 of the report of the Bombay case observed as follows: It is clear that under sub-s. (2) the phrase 'the Court in which the award under the arbitration agreement may be filed' has reference only to proceedings in connection with the arbitration agreement. If a question arises with regard to the validity, effect or existence of an arbitration agreement, then the question has got to be decided by the Court in which the award which may result from that arbitration agreement may be filed. If the question is with regard to the award itself, then the question has got to be determined by the Court in which the award has been filed. The prayer to which I have referred and which is set out in cl. (2) of the notice of motion raises a question as to the validity, effect or existence of the arbitration agreement and can therefore be sought for in an application to this Court where the award may be filed even though the award had not been actually filed at the date of the application. Even assuming that the main application for setting aside the award is to be deemed to have been made on 23rd November 1944, when the interim injunction was issued, must it be dismissed on the ground that the award had not been filed prior thereto although the award had, in fact, been filed two days later on but before the disposal of the application? It is argued by Learned Counsel for the respondent company, on the analogy of the principle that the cause of action in a suit must be antecedent to the institution of the suit, that the cause of action for an application to set aside the award must be antecedent to the making of the application and that there is no cause of action for setting aside an award until the award has been filed in Court. I do not agree that the filing of the award is any part of the cause of action for setting aside the award. The grounds for setting aside an award are set out in S. 80, Arbitration Act. As soon as the conditions there laid down are fulfilled, the cause of action for setting aside the award is complete. I do not agree that the filing of the award is any part of the cause of action for setting aside the award. The grounds for setting aside an award are set out in S. 80, Arbitration Act. As soon as the conditions there laid down are fulfilled, the cause of action for setting aside the award is complete. Is the actual filing of the award in Court which has undoubtedly been held in the two decisions cited above, to be necessary for maintaining an application for setting aside the award to be also regarded as a condition precedent, the non-fulfilment of which cannot be cured by subsequent filing of the award? Is it a condition precedent like leave under Cl. 12, Letters Patent, which must be obtained before the institution of the suit or is it a mere condition like leave to sue a receiver or leave under O. 2, R. 2 or O. 2 R. 4 which may be obtained at any time before judgment? I do not see why the defect due to the non-filing of the award at the date of the application cannot be cured by the filing thereof before the disposal of the application. 41. In many cases events happen after the institution of a suit or proceeding bringing about a change of circumstances and to shorten litigation or to do complete justice between parties it becomes incumbent upon the Court to take notice of these subsequent events and to mould its decision according to the circumstances as they stand at the time the decree or order is made (See Nurimian v. Ambica, 44 Cal. 47 at p. 55 : (A.I.R. 1917 Cal. 716). The award having now been actually filed in this Court, this Court has become the only Court which under S. 31, Arbitration Act, 1940, has jurisdiction to decide all questions regarding the validity, effect or existence of the award or the arbitration agreement under which the award has been made. It will serve no useful purpose it I dismiss the application today for want of jurisdiction due to non-filing of the award before the date of the application, for the applicant will be entitled to bring on another application on the same grounds immediately after such dismissal. Such a course will only involve multiplicity of proceedings and unnecessary costs. It will serve no useful purpose it I dismiss the application today for want of jurisdiction due to non-filing of the award before the date of the application, for the applicant will be entitled to bring on another application on the same grounds immediately after such dismissal. Such a course will only involve multiplicity of proceedings and unnecessary costs. In my judgment the filing of the award on 25th November 1944, immediately cured the defect in the jurisdiction of this Court to entertain the application. 42. In certain cases judgments and orders are directed to be entered nunc pro tunc (See R.S.C.O. 52, R. 15). In Toronto Railway v. King (1908) A.C. 260 : (77 L.J.P.C. 77), their Lordships of the Judicial Committee gave special leave to the respondent to cross appeal nunc pro tunc. This doctrine or nunc pro tunc has been applied by Courts in this country. (See Hara Krishna Mitra v. Ramgopal Mitra, 14 C.W. N. 759 : (6 I.C. 170)). In the case now before me requisition was given on 23rd November 1944 for filing the award and the award was filed on 25th November 1944. The delay in the court office should not prejudice the applicant and if necessary I shall be prepared to direct that the award be filed nunc pro tunc and dated as on 23rd November 1944. 43. For reasons stated above, I cannot give effect to the second ground of objection as to the maintainability of this application. 44. The result, therefore, is that this application is allowed and I set aside the award made orally on 8th August 1944, and formally drawn up in writing and signed on 3rd September 1944. The orders of reference will stand superseded. The applicant will be entitled to the costs of this application as against the respondent company.