JUDGMENT Ray J. This is an application for an order for stay of ant further proceedings in Money Execution Case No.2 of 1977 pending in the court of Subordinate Judge, 7th Court, Alipore till the disposal of the appeal, being F.M.A.T. No. 533 of 1977. 2. The opposite party no. 1 made an application under Section 8(2) of the Arbitration Act. 1940 (Act X of 1940) for appointment of an arbitrator before the Subordinate Judge, 7th Court, Alipore. This was registered as Misc. Case No. 58 of 1974. The Subordinate Judge by order no. 29 dated 8.1.76 appointed Sri, S.N. Ganguli, Deputy Manager (Enquiry), Legal Cell of Food Corporation as Arbitrator for adjudication of the disputes, claims and differences between the parties arising out of the contract entered into between the opposite party no.1 and the District Manager, Food Corporation of India, 24 Parganas. The Arbitrator issued notices to the parties directing them to file their respective claims. The petitioner on April, 1976, filed a petition praying for amendment of the statement of claims filed by him by including two sums amounting to Rs.5,55,620.99 paise and Rs. 25,909.30 paise representing claims for shortage and transport charges respectively. This petition was rejected on April 19, 1976. On May 19, 1976, the Arbitrator published his award and submitted the same before the court. 3. The petitioner on June 18, 1976, made an application before the Subordinate Judge, 7th Court, Alipore praying for remitting the award to the Arbitrator for reconsideration of the claim of Rs. 5,55,620.90 paise on account of shortages The opposite party no.1 also made an application for remitting the award to the Arbitrator for consideration as the award was indefinite and incapable of execution. These applications were disposed of by the Subordinate Judge who by order No. 39 dated 10th July, 1976 remitted the award for reconsideration. 4. The petitioner, thereafter, on 19th May, 1976, filed an application before the Arbitrator for considering the claim regarding shortage of foodgrains for Rs. 5,55,620.99 paise against the opposite party no.1, the storing agent. The Arbitrator rejected the claim of the petitioner without considering the same and made a fresh award. This award was filed by the Arbitrator before the court on 23rd August, 1976. The petitioner then made an application before the court praying for remitting the award to the Arbitrator for reconsideration of the claim made by the petitioner. 5. The Arbitrator rejected the claim of the petitioner without considering the same and made a fresh award. This award was filed by the Arbitrator before the court on 23rd August, 1976. The petitioner then made an application before the court praying for remitting the award to the Arbitrator for reconsideration of the claim made by the petitioner. 5. On November 19, 1976, the Subordinate Judge, 7th Court, Alipore, passed order no. 46 holding that there was no cause for remitting the award any further for reconsideration to the Arbitrator and accepted the award and directed the passing of a decree in terms of the award. 6. Against this order an appeal, being F.M.A.T. No. 533 of 77 has been preferred and this application for stay of further proceeding of the Money Execution Case No.2 of 77 has been made. 7. An affidavit-in-opposition has been filed on behalf of the Opposite party no.1. In paragraph 17 of the said affidavit-in-Opposition it has been stated that the petitioner filed his claim in pursuance of the notice of the Arbitrator and subsequently his statements of claim was amended by order dated 16.2.76. In paragraph 19 of the opposition it has been stated that in the statement of claims petitioner while disputing the claim of opposite party no. 1 claimed a sum of Rs. 80,000/- only on account of payments alleged to have been made for twine demarrage charges and for some payments made to which the opposite party no. 1 was not entitled. It has also been stated that evidences were adduced by the parties in support of their claims and hearing of the proceedings was concluded and 13.4.76 was fixed for delivery of award. On 19.4.76 the petitioner made an application making an imaginary claim of Rs 5,81,000/-. It has been stated that the award was remitted on the application of the opposite party no.1 for reconsidering the award in the light of the objections raised in his petition. The award was reconsidered and the Arbitrator submitted a fresh award within the time fixed by the court. It has been submitted that the appeal against order no. 46 dated 19.11.76 is not maintainable as it is not an appeal under any of the clauses under Section 39 nor it comes under the provision of Section 7 of Arbitration Act. The application for stay, it has been submitted, should not be allowed. 8. It has been submitted that the appeal against order no. 46 dated 19.11.76 is not maintainable as it is not an appeal under any of the clauses under Section 39 nor it comes under the provision of Section 7 of Arbitration Act. The application for stay, it has been submitted, should not be allowed. 8. Mr. Saktinath Mukherjee, the learned Advocate for the appellant petitioner, has submitted that both the petitioner and the opposite party no.1 made applications for remitting the award for reconsideration and the court by order no. 10 dated 10.7.76 remitted the award for reconsideration and for submitting a fresh award within three months. The Arbitrator rejected the petitioner's claim without reconsidering it and as such this amounts to misconduct on the part of the Arbitrator within the meaning of Clause (a) of Section 30 of Arbitration Act and the order is appealable under Section 39 clause (vi) of the said Act. Mr. Mukherjee however, admits in his usual frankness that if the order is one under Section 16 of the said Act then no appeal will lie against the order. 9. Mr. Mukherjee has also submitted that Section 30 of the said Act does not contemplate an application to be filed for setting aside the award. An objection by the party may impel the court to set aside the award suo motu under Section 30 of the said Act. 10. Mr. Kanan Kumar Ghose, learned Advocate for the opposite party no. 1 has submitted that the appeal is not maintainable as the order appealed against is one passed under Section 16 of the Arbitration Act rejecting the application of the petitioner for remitting the award and for making a fresh award. No appeal lies against such an order either under Section 17 or under section 39 of the Arbitration Act. Mr. Ghose has further submitted that the award published on May 19, 1976 was remitted back to the Arbitrator on the application of the opposite party no. 1, that the same was incapable of execution due to some illegality and mistakes apparent on the face of it and for making a fresh award and not for reconsideration of the application of the petitioner for inclusion of his claim for shortages. It has been submitted that the Arbitrator cannot be said to have misconducted himself in making the fresh award on rejecting the claim of the petitioner. It has been submitted that the Arbitrator cannot be said to have misconducted himself in making the fresh award on rejecting the claim of the petitioner. The application before the court for remitting the award passed on 23rd August. 1976, is not in substance an application for setting the award under section 30 of Arbitration Act. Mr. Ghose has, therefore submitted, that the appeal being not maintainable the same is liable to be dismissed and the stay application is also liable to be rejected. 11. The Arbitrator appointed in the Misc. Case passed an award which was published on May 19, 1976. The said award was filed in court. The opposite party no.1 made an application before the court for remitting the award to the Arbitrator for reconsideration as the award was incapable of execution due to some mistakes and illegalities apparent on the face of the award and for passing a fresh award. The petitioner also made an application for remitting the award for reconsideration and for inclusion of his claim for a certain sum of money on amount of short delivery. The learned Subordinate Judge, 7th Court, Alipore by order no. 39 dated July 10, 1976 remitted the award to the Arbitrator for reconsideration and directing to submit a fresh award within three months from the date of the order. At the time of reconsideration of the award the petitioner prayed for inclusion of his claim and for allowing him to adduce fresh evidence to prove his claim on the ground that the original powers of the Arbitrator had been restored. This plea was rejected by the Arbitrator on the ground that it was not legal and valid to allow introduction of any new claim at this stage. It was also held by the Arbitrator that the inclusion of this claim was rejected by him at the time of first hearing of the reference and the matter was finally decided by him. The Arbitrator after considering the petition of the opposite party no. 1 passed a fresh award and filed the same in court on August 23, 1976. The petitioner filed an application before the Subordinate Judge, 7th Court, Alipore praying for remitting the fresh award for reconsideration by the Arbitrator regarding the claim of the petitioner amounting to Rs. 5,55,620.99 paise. The Arbitrator after considering the petition of the opposite party no. 1 passed a fresh award and filed the same in court on August 23, 1976. The petitioner filed an application before the Subordinate Judge, 7th Court, Alipore praying for remitting the fresh award for reconsideration by the Arbitrator regarding the claim of the petitioner amounting to Rs. 5,55,620.99 paise. On 19th November, 1976, the learned Subordinate Judge held that there was no cause to remit the award any further to the Arbitrator for reconsideration of the claim of the petitioner and the petition was rejected. It was also held that there was no failure of the Arbitrator to consider the matter referred to him and submit his decision. The award submitted by Arbitrator was accepted and a decree was directed to be made in terms of the award. The impugned order no. 46 dated 19.11.76 passed in Misc. case No. 58 of 1976 is, therefore, in our considered opinion an order passed under Section 16 of the Arbitration Act rejecting the petition for remitting the award to the Arbitrator and as such no appeal lies against this order either under Section 17 or under Section 39 of the Arbitration Act. The application for remitting the award cannot by any stretch of imagination be treated as one under Section 30 of the Arbitration Act, 1940 for setting aside the award on the ground that the Arbitrator has misconducted himself in passing the award, and as such the impugned order is not an appealable order under the provisions of the Arbitration Act. 12. In (1) AIR 1952 Calcutta 289, Hind Constructions Ltd. v. Dwarika Nath Sen and others, the plaintiff brought a suit against the defendant Hind Construction Ltd. for enforcement of an award under the provisions of the Arbitration Act. The defendant in their written statement alleged that the award was vitiated by misconduct on the part of the Arbitrator and the same was filed beyond time and as such it was invalid. The Subordinate Judge decreed the suit. An appeal was preferred against the said decree. It has been held that in the objection a prayer was made expressly for setting aside the award and as such the court's decree overruling the defendant's objection and decreeing the suit is substantially one refusing to set aside the award and it comes under Section 39(i) (vi) of Arbitration Act. An appeal was preferred against the said decree. It has been held that in the objection a prayer was made expressly for setting aside the award and as such the court's decree overruling the defendant's objection and decreeing the suit is substantially one refusing to set aside the award and it comes under Section 39(i) (vi) of Arbitration Act. In (2) AIR 1950 Cal 53 , Bholanath Chatterjee and another v. Chandra Sekhar Bhattacharjee, it has been observed that an appeal lies against a decision overruling objections to the filing of an award under Section 39(i)(vi) of the Arbitration Act. In (3) AIR 1967 SC 1233 , Madan Lal v. Sundar Lal and another an award made by the arbitrator was filed in court with a prayer for a decree in accordance with the award. An objection was filed by the appellant attacking validity of award but the objection did not contain any prayer for setting aside the award. It was observed by their Lordships of the Supreme Court that the objection was not one under section 30 of the Act. It was also observed that even assuming that the court had power to set aside the award suo motu, that power could not be .exercised if the grounds falling under section 30 were taken in an objection petition filed more than 30 days after the service of notice of filing of the award. These decisions do not apply to this case as the facts of this case are different from the facts of those cases mentioned above. 13. The appeal filed by the petitioner ii, therefore, not maintainable in law and we accordingly dismiss the same. The application for stay is also rejected. As we have held that the appeal is not maintainable it is not necessary to pass any order on the alternative application filed under Section 115 of the Code of Civil Procedure. The order passed by us on 28.4.77 is recalled. There will be no order as to costs. Mukherji. J.: I agree.