Das, J.In my opinion, there is no right of appeal in this Court. The matters in dispute between the parties were referred to the arbitration of certain persons by the order of the Court, dated the 30th March 1922, and, on the 12th July 1922, the arbitrators filed their award. Under the Limitation Act, the parties had ten days time to apply to set aside the award. On the 24th July 1922, the Defendants filed their objections and applied for time for summoning their witnesses. The application was refused, and, the Defendants withdrawing from the contest, the Court proceeded to pronounce judgment according to the award, and, upon the judgment so pronounced, a decree followed in accordance with law. The Defendants moved this Court against the order of the Court declining to give them time, and this Court, in the exercise of its power of superintendence, remitted the case to the Subordinate Judge with direction that the Subordinate Judge should give an opportunity to the Defendants to establish their case as against the, award. The matter then went back to the Subordinate Judge for a fresh enquiry into the grievances of the Defendants, and the Court fixed the 20th February for the disposal of the matter. On the 20th February, the Defendants applied for adjournment, and the Court adjourned the hearing to the 14th March. There were two further adjournments at the instance of the Defendants, and the case was finally fixed for the 19th of April. On that day, the Defendants were absent, and the Court proceeded to pass a decree in terms of the award. The Defendants then applied for setting aside the decree under the provision of Order 9, Rule 13 of the Code. The learned Subordinate Judge thought that the application was not maintainable, and, in that view, dismissed the application on the 28th April 1923. It is against the order of the 28th April that the present appeal has been brought.

2. Now, the first question is, is there a right of appeal The learned Vakil for the Appellants has referred us to the provisions of Section 104(f) and Order 43, Rule 1(d) of the Code. Section 104(f) provides that an appeal shall lie from an order filing or refusing to file an award in an arbitration without the intervention of the Court. Here the arbitration was with the intervention of the Court. That Section has clearly no application, to this case. Order 43, Rule 1(d) gives a right of appeal to a party from an order under Order 9, Rule 13 rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte. Here an order has been passed under Order 9, Rule 13 rejecting an application from an order to set aside a decree. Two questions, however, arise first, was the case open to appeal and, secondly, was the decree passed ex parte It is clear, to my mind, that an order under Order 9, Rule 13 is appealable only where the decree sought to be set aside is appealable and is regarded as having been passed ex parte. In my opinion, neither of these conditions is satisfied in the present case, and it must follow that the appeal is wholly incompetent.

3. I will first deal with the question whether the decree passed by the Subordinate Judge in terms of the award was appealable. In my opinion it is only necessary to refer to the provision of para. 16 (2) of the second schedule of the Code to hold that, where the decree is in terms of the award, no appeal lies. It is true that there is a right of appeal where the decree is in excess of or not in accordance with award; but here the decree is in terms of the award. By the express provision of the statute, this was not a case which was open to appeal. That being so, the order passed by the Court on the application of the Appellants to have the decree upon the award set aside is not appealable.

4. The second point is equally clear. It is asserted by the Appellants that as they had no opportunity to place their case before the Court the decree must be regarded as ex parte; but it is nothing of the sort. An ex parte decree is a decree passed by the Court in the absence of the Defendants where the Plaintiff has proved his case: but here the presence of the parties was not necessary to enable the Court to pronounce judgment according to the award. A party may indeed apply to have the award set aside no one of the grounds mentioned in para. 15(1); but where no such application is made, and where the Court does not remit the award to the reconsideration of the arbitrators, there is no option in the Court but "to pronounce judgment according to the award." The Defendants indeed presented an application for setting aside the award, but they were not present to prosecute their application, and the Court dismissed their application for default. Their application having been dismissed, the Court was bound to pronounce judgment according to the award. What happened was, not that an ex parte decree was passed against them, but that their application was dismissed for default.

5. For all these reasons I am of opinion that no appeal lies, and I must dismiss this appeal with costs.

Adami, J.

6. I agree.