Judgment Dayal, J. 1. This appeal is by the sole surviving defendant under Sec.39(1) of the Arbitration Act. 1940, against an order dated the 14th May, 1954 of the Additional Subordinate Judge, first Court, Patna, superseding the reference to arbitration. 2. The material facts are these: The respondent filed Money Suit No, 249 of 1951 against the appellant and Babu Banwari Lal, since deceased, in the Court of the Additional Subordinate Judge, first Court, Patna. The claim was laid at Rs. 6411-15-3. On the 17th February, 1954, the parties applied for sending the records of the suit to Shri Rameshwar Missir for arbitration. In the petition, Shri Rameshwar Missir and Shri Kalyan Singh were named as arbitrators to decide the issues involved in the suit. The said arbitrators were also empowered to select another arbitrator of their own choice. Shri Rameshwar Missir was named as the Chief Arbitrator. There was no provision made in the application for filling vacancies. The arbitration was to the above-mentioned named persons. On the 26th April, 1954, Shri Kalyan Singh filed an application, resigning his office of arbitrator on the ground that he had no time. On the same date, Revati Mohan Das, the Sar Panch selected by the two arbitrators, also filed an application of resignation on the ground that he was too old and infirm. On the 7th May, 1954, the defendants applied before the learned Subordinate Judge, praying that Baldeo Choudhary and Balmakund Singh be appointed arbitrators in places of the outgoing arbitrators. The defendants also disclosed in that petition that notice of this had been sent to the plaintiff on the 6th May 1954, asking him to concur. On the 7th May 1954, the plaintiff filed a rejoinder, alleging the following on amongst others:- - "3. That the defendants have applied to the court for appointment of other persons, viz, (1) Sri Baldeo Chaudhary and (2) Sri Balmakund Singh as arbitrators in their places. The two gentlemen are hostile to the plaintiff there being serious differences between them and the plaintiff. These persons are men and creatures of the defendants. The plaintiff emphatically objects to their appointments as arbitrators and the plaintiff cannot by any means concur in their appointment. 4. That Srt Rameshwar Missir too has since gone in collusion with, the defendants and the plaintiff has no reliance on his sense of honesty now. These persons are men and creatures of the defendants. The plaintiff emphatically objects to their appointments as arbitrators and the plaintiff cannot by any means concur in their appointment. 4. That Srt Rameshwar Missir too has since gone in collusion with, the defendants and the plaintiff has no reliance on his sense of honesty now. In the ends of justice it is desirable that the suit be heard by the Court itself." On the 8th May 1954, a petition in reply to the rejoinder petition of the plaintiff was filed by the defendants. The defendants prayed for the rejection of the rejoinder petition and for filling the vacancies as prayed by them. 3. The Court below held. :- - "The proviso to Sec.25 of the Arbitration Act lays down inter alia that the Court may, in any of the circumstances mentioned in Section 8, instead of filling up the vacancies or making the appointments, make an order superseding the arbitration and proceed with the suit. An Arbitrator is a Judge chosen by the parties themselves. In the circumstances set forth above, it does not seem proper and fair to thrust upon the plaintiff the arbitrators appointed by the defendants. As the plaintiff is not inclined to concur in the appointment of any other arbitrator, the arbitration has to be superseded. The reference is, therefore, superseded and the arbitration agreement ceases to have any effect. Put up on 27-5-53 for hearing of the suit on merit." Being thus aggrieved the present appeal has been filed as indicated above. 4 The learned Advocate for the appellant has contended that the grounds on which the arbitration has been superseded is unsustainable in law. He also referred to Bjornstad and Ouse Shipping Co., In Re. (1924} 2 KB 673 at p. 678) (A) and Gopalji Kuverji, V/s. Morarji Jeram Naranji. ILR 43 Bom. 809 at P. 819: (AIR, 1919 Bom 24) (B). Both these cases held that "the Court has a discretion. Whether it should or should not make an appointment." 5. The learned advocate for the appellant has conceded that the matter is entirely discretionary and, in a proper case, the Court has a discretion to supersede the arbitration. ILR 43 Bom. 809 at P. 819: (AIR, 1919 Bom 24) (B). Both these cases held that "the Court has a discretion. Whether it should or should not make an appointment." 5. The learned advocate for the appellant has conceded that the matter is entirely discretionary and, in a proper case, the Court has a discretion to supersede the arbitration. The proviso to Sec.25 of the Arbitration Act, 1940, which is admittedly applicable to the present case, runs as follows: "Provided that the Court may, in any of the circumstances mentioned in Sections 8, 10, 11, and 13 instead of filling up the vacancies or making the appointment make an order superseding the arbitration and proceed with the suit, and where the Court makes an order superseding the arbitration under Sec.19, it shall proceed with the suit," So it is abundantly clear that the matter was entirely in the discretion of the Court. Sufficient grounds for the exercise of the discretion in the case for superseding the arbitration have been made out. The application for reference to arbitration emphasises on the persons named therein. Two of the arbitrators, have voluntarily resigned. The plaintiff has no confidence in the other arbitrators now named by the defendants. They have all been characterised as partisans and as defendants men. Besides the allegation is that Rameshwar has also since been gained over. For these reasons, it appears to me that there is no substance in this appeal, which must be dismissed with costs. Ahmad, J. 6 I agree.