Judgment Sinha, J. 1. This is a defendants application against an order, dated 20th September 1948, passed by the Additional Subordinate Judge of Arrah confirming that of the Additional Mansif of Buxar, dated 13th March 1948, setting aside an award given by an arbitrator appointed by the parties, out of Court. 2. It appears that on 20th March 1946, the parties agreed to refer their differences to the arbitration of a single person. The arbitrator gave his award on 18th January 1947, apparently in favour of the defendant. On 31st July 1947, the opposite party purported to file a suit to set aside the award on the ground of misconduct of the sole arbitrator. Both the Courts below have agreed in setting aside the award. Hence this application in revision by the defendants. 3. It is not necessary, in this case, to go into the merits of the case of either party. The only point urged in support of the application is that the so-called suit was not maintainable, or that, at any rate, it was premature. It appears that the award had not been filed in Court. It was filed during the pendency of the so-called suit in the Court of the learned Munsif. At what exact stage it was filed does not appear from the record that is before us; but one thing is clear that the award was before the Court before the proceedings terminated in favour of the opposite party. The Courts have gone into evidence, and come to the conclusion that the award was vitiated by the misconduct of the arbitrator. But Mr. Kailash Ray, for the petitioners, has contended that, under Sec.32, Arbitration Act, the suit was not maintainable. That would appear to be so. But the so-called suit was treated as an application under Sec.33, Arbitration Act, and the parties appear to have proceeded on that footing. An application is maintainable under Sec.33 of the Act to have the validity of an arbitration or an award determined by the Court. In this case, the Courts below have determined that the award was not valid. But Mr. Kailash Ray, relying upon the decision of a single Judge of the Bombay High Court in Ratanji Virpal and Co. V/s. Bhirajlal Manilal, I. L. R. (1942) Bom. 452 : (A.I.R. (29) 1942 Bom. In this case, the Courts below have determined that the award was not valid. But Mr. Kailash Ray, relying upon the decision of a single Judge of the Bombay High Court in Ratanji Virpal and Co. V/s. Bhirajlal Manilal, I. L. R. (1942) Bom. 452 : (A.I.R. (29) 1942 Bom. 101) and on the decision of the Calcutta High Court in Bengal Jute Mills Co. Ltd. V/s. Jewraj Heeralal, I.L.R.(1943) 2 Cal 392 : (A.I.R. (31) 1944 Cal.304), has contended that the proceedings were entirely infructcuous, inasmuch as there was no award before the Court when the-application had been made. But the case more in point is that decided by S. R. Das J. of the Calcutta High Court in I. G. H. Ariff V/s. Bengal Silk Mills Ltd., A.I.R. (36) 1949 Cal. 360 : (I. L. R. (1945) 2 Cal. 70) in which his Lordship has pointed out that once the award is produced in Court, even though it may not have been filed before the application was made, it will be deemed to have been made as an application to set aside the award. Treated as such, there, is no difficulty in holding that, when the award was produced in Court in the present case, the Court could entertain the opposite partys application to get the award set aside. Hence, it must be held that there is no substance in this technical objection that, when the application had been filed in Court, there being no award in Court, the same could be thrown out. The application could have been thrown out so long as there was no award in Court. But, during the pendency of the case in the Court of first instance, the award having been produced, it was there before the Court to be examined with a view to deciding as to whether the award should, or should not, be made a decree of the Court. 4. As no other question of substance was raised before us, it is manifest that the orders passed by the Courts below are correct. This application must, therefore, be dismissed; but, in view of the fact that the applicants in the Court below themselves made the mistake, which has given a handle to the petitioners, there will be no order as to costs in this Court. Rai, J. 5 I agree.