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(2) Any provision in an arbitration agreement whereby the arbitrators or umpire may. except with the consent of all the parties to the agreement, enlarge the time for making the award, shall be void and of no effect." On these provisions, and having regard to the dates we have mentioned earlier, of reference to the Arbitrator (26-10-68). notice for appearance (3-1-69) first hearing (4-6-69). second hearing (17-6-69), and the award (11-9-69), the period of four months should commence from the date on which the Arbitrator entered on the reference (there being no notice calling upon him to act). His notice dated 3-1-69 supplies this date; and the 1st and 2nd hearing, and the award are all beyond four months from that date. The question has been debated before us whether the petitioner having participated in the hearings, beyond the period of four months, is precluded from objecting to the award on the ground that it was passed beyond time. In the view that we take, it seems unnecessary to pronounce upon it, but as the matter was argued at length, we shall indicate our opinion. Under Section 28 (1) of the Act the court has power to extend the time for making the award beyond the period of four months, whether before or after the passing of the award. It was agreed before us that this power which was available to the court below can be exercised by us as the appellate Court That being so, we are of the opinion that on the facts set out above this Is a fit case for the extension of time for making the award till it was passed, viz. 11-9-'69 and we would extend time accordingly. We cannot but record our sur-

(underlining ours) Earlier it was said :

"......... if time was not extended by court the document described as an award would be treated as non est."

It is plain that the observations about the arbitrator becoming functus officio and the award becoming non est are all subject to the period for submission of the award not being extended. Raghubar Dayal J. in a separate concurring judgment held that if the arbitrators had entered on the reference, the four months' period began from the date when they so entered, and that any notice subsequently given, calling upon them to act will not make the period start afresh from the date of such subsequent notice. In the Supreme Court case the reference to arbitration was on 17-8-48; within 10 days thereafter, the arbitrator gave notice and entered on the reference; on 25th July, 1949 the mother of one of the parties died and the proceedings were held up; on 31-8-50 one of the parties tthe appellant before the Supreme Court) gave notice to the Arbitrators to proceed with the reference; the Arbitrators proceeded and made an award on 1-10-50; the appellant before the Supreme Court filed an application on 23-1-51 to file the award; it was then objected that the award was filed beyond time and was invalid. The objection was upheld. As pointed out by the Full Bench of the Patna High Court in the decision noticed supra, it does not appear from the facts that the parties participated before the Arbitrator after the expiry of the four months period. And no question of waiver or acquiescence or estoppel was raised or argued before the Supreme Court. The question directly considered by the Supreme Court, viz. whether a notice subsequent to the arbitrator entering upon the reference can give a fresh start of time, does not arise here; and the observations of the Court about the award being non est and the arbitrators being functus officio have to be read and understood in their proper context.