JUDGMENT P. K. Jain, J. - These two writ petition have been filed challenging common judgment and order dated 18-1-1980 passed by respondent No. 1 in Civil Appeal No. 337 of 1978 with a prayer to quash the impugned judgment and order by issuing a writ in the nature of certiorari under Article 226 of the Constitution of India. 2. One Thakur Prasad (since deceased) filed Suit No. 235 of 1974 against petitioner Moti Lal and respondent Nos. 10 to 13, Vijai Prasa, Gorakh Prasad, Har Prasad and Bharat Prasad, in Writ Petition No. 5403 of 1980. In pursuance to a joint application dated 29-7-1974 under Section 21 of the Arbitration Act, 1940 by the plaintiff and the defendants in the said suit, the Court referred the dispute to the arbitration consisting of Kishun Singh, Dharmdeo Singh, Garaj Narain Singh, Rishideo Singh, Dwarika Singh and Sarju Ram. The Arbitrators so appointed filed the award before the Court on 27-8-1974. Separate objections under Section 33 of the Indian Arbitration Act, 1940 were filed by Moti Lal, defendant No. 1 (Annexure-4 to the affidavit in Writ Petition No. 5403 of 1980) and by defendants Vijai Prasad, Gorakh Prasad, Har Prasad and Bharat Prasad (Annexure-3 to the affidavit in Writ Petition No. 3029 of 1980). 3. The learned Munsif by a common order dated 30-10-1978 disposed of the objections by allowing the same and cancelling the award. Civil Appeal No. 337 of 1978 was preferred by heirs and legal representatives plaintiff Thakur Prasad (respondent Nos. 3 to 9) in Writ Petition No. 5403 of 1980. The Appellate Court set aside the order of the learned Munsif and directed that the award be made rule of the Court. It is this judgment and order which is being challenged by petitioner Moti Lal and petitioners Vijai Prasad, Gorakh Prasad, Har Prasad and Bharat Prasad in the two writ petitions on common grounds. Hence, the two writ petitions are being disposed of by a common judgment. 4. Heard Mr. Shambhu Nath Srivastava, learned Counsel for the petitioners. It is this judgment and order which is being challenged by petitioner Moti Lal and petitioners Vijai Prasad, Gorakh Prasad, Har Prasad and Bharat Prasad in the two writ petitions on common grounds. Hence, the two writ petitions are being disposed of by a common judgment. 4. Heard Mr. Shambhu Nath Srivastava, learned Counsel for the petitioners. None appears for the respondents in Writ Petition No. 3029 of 1980 and Writ Petition No. 5403 of 1980 heirs and legal representatives of plaintiff Thankur Prasad : "It is submitted by learned Counsel for the petitioner that the appeal against the order passed by the learned Munsif was not maintainable since the applications moved by the petitioners in both the petitions were under Section 33 of the Indian Arbitration Act. It is further submitted that on merit also the findings of the learned Munsif were correct and in accordance with law and therefore, the Appellate Court committed error in setting aside the findings of the learned Munsif. Objections (Annexure-4 in Writ Petition No. 5403 of 1980 and Annexure-3 in Writ Petition No. 3029 of 1980) were filed under Section 33 of the Indian Arbitration Act. Section 33 of the Indian Arbitration Act provides that "any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits. Provided ........." Perusal of the said objection (Annexure-3 in Writ Petition No. 3029 of 1980) shows that petitioners Vijai Prasad, Gorakh Prasad, Har Prasad and Bharat Prasad, had specifically stated that they did not file written statement nor did they move an application for appointing Arbitrators nor did they appoint Mr. Radha Krishna Upadhyaya as their Counsel and they never signed the arbitration agreement. Thus besides challenging the award on merit, the petitioners were also challenging the existence of the agreement of arbitration. The Appellate Court also held that the application was under Section 33 of the Indian Arbitration Act. Learned Counsel has relied upon the case of Tota Ram & Anr. v. Baj Nath & Ors. (A.I.R. 1955 N.U.C. 1515 (Vol. Thus besides challenging the award on merit, the petitioners were also challenging the existence of the agreement of arbitration. The Appellate Court also held that the application was under Section 33 of the Indian Arbitration Act. Learned Counsel has relied upon the case of Tota Ram & Anr. v. Baj Nath & Ors. (A.I.R. 1955 N.U.C. 1515 (Vol. 42)), wherein it was held by a Division Bench of this Court that "if an application filed under Section 33 in rejected and the Court holds that the petitioner has failed to challenge successfully the validity of the award, there is no provision in that section requiring the Court to pronounce judgment according to the award and directing that upon the judgment so pronounced a decree shall follow. Section 39(1) Clause (4) relates to filing or refusing to file an arbitration agreement and not to a case where an application that the opposite party be required to file an award is dismissed. There is no other Clause in Section 39(1) which would make this part of the order appealable. No appeal, therefore, lies against an order passed on an application under Section 33". Since in the instant case the existence of the arbitration agreement itself is challenged and no appeal is provided under any Clause of Section 39(1) of the Arbitration Act, 1940, against on order up holding such plea 1 agree with the learned Counsel for the petitioner that the appeal was not maintainable. 5. As regards merit, it is pointed out that on 24-8-1974 an application (Annexure-2 to the affidavit in Writ Petition No. 5403 of 1980) was moved by Moti Lal and others which according to the learned Counsel for the petitioners remained undisposed of and in the mean time on learning labour filing of such application, the award was filed in the Trial Court on 27-8-1974. It is further pointed out that Rishi Deo Singh, one of the Arbitrators, moved an application dated 29-8-1974 (Annexure-3 to the affidavit in Writ Petition No. 5403 of 1980) alongwith an affidavit. 18C/2 and 19C/2 respectively referred by the Trial Court in its judgment stating that his signatures were obtained by Sarpanch Mr. Krishna Singh on blank paper, on the pretext that notices are to be served upon the parties and that no proceedings were held in his presence nor any evidence was recorded. 18C/2 and 19C/2 respectively referred by the Trial Court in its judgment stating that his signatures were obtained by Sarpanch Mr. Krishna Singh on blank paper, on the pretext that notices are to be served upon the parties and that no proceedings were held in his presence nor any evidence was recorded. The arbitration agreement would show that the award was to be given unanimously by the Arbitrators. While setting aside the award the Trial Court had taken all these facts into consideration. The Appellate Court held that these objections were not open to the defendants inasmuch as no application for setting aside the award had been filed under Section 30 of the Indian Arbitration Act. The language of Section 33 of the Arbitration Act does not bar a party from challenging the validity of the award on the ground mentioned in the objections of the petitioners. The Appellate Court has, therefore, committed error in holding that since no challenge was made to the award under Section 30 of the Indian Arbitration Act, the validity of the award cannot be challenged under Section 33. 6. In this view of the matter the judgment and order dated 18-1-1980 passed by the Appellate Court in Civil Appeal No. 337 of 1978 was against law and without jurisdiction. Writ Petitions, therefore, deserves to be allowed and the impugned order deserves to be quashed. 7. Consequently the writ petitions are allowed and the impugned order dated 18-1-1980 passed in Civil Appeal No. 337 of 1978 is hereby quashed. No order as to costs. Writ Petitions allowed.