JUDGMENT : R.N. Misra, J. - The Petitioner entered into an F-2 agreement undertaking to execute works for the State of Orissa under the control of the Executive Engineer, opposite party No 2. Dispute arose as to execution of the work and the Petitioner made an application u/s 20 of Arbitration Act which came to be registered as O.S. No. 45 at 1978. The learned Subordinate Judge directed a reference to be made to an arbitrator. On 27-11-1979 the following order was made: Defendants file a panel of names. Plaintiff files objection to the panel of names filed by the Defendants today There is no common name in the two lists. Each party objects to the names submitted by the other. In these circumstances, I appoint the Arbitration Tribunal to act as arbitrator. Inform the Chairman and send him a copy of the plaint containing the disputes for arbitration. 2. The Petitioner challenges the order dated 27-11-1979 on the footing that the arbitration clause stipulated a sale arbitrator and indicated the manner of his appointment. The Tribunal had not come into existence when the agreement was entered into in terms whereof authority had been given to the named Chief Engineer to make appointments on behalf of both the parties in the event of dispute for arbitration Since in the absence of exercise of that jurisdiction the court is to appoint an arbitrator in terms of the stipulation in the arbitration clause it was not open to the learned Subordinate Judge to bring in the Tribunal to be the arbitrator I am inclined to accept the submission of Mr. Mohanty. To reiterate, at the time of the agreement nor at the time when dispute arose the Tribunal was in existence. Therefore, it was not open to the learned Subordinate Judge while proceeding to enforce the arbitration clause to refer the dispute to the Tribunal. 3. The order is accordingly vacated. It would be for the court now to make an appointment of arbitrator since the appointing authority under the arbitration agreement has not chosen to exercise jurisdiction and parties have not agreed upon a common arbitrator. The learned Subordinate Judge will now make an appointment in accordance with law. There would be no order for costs.