JUDGMENT - PATEL., J. :

The plaintiff appellant filed the suit for refund of earnest paid, under an agreement to purchase, to the defendant on 6-2-1950. According to him the defendant has committed the breach. Previous to this there was an arbitration between the parties, but the application made by the arbitrator for a decree in terms of the award was dismissed by the Court as the award was not registered. The defendants raised various contentions to the claims by their written statement one amongst them, being a legal one, that the suit was not maintainable in view of Ss. 31. 32 and 33 of the Indian Arbitration Act 1940 as there was a previous arbitration.

(2) The trial Judge raised a preliminary issue and held that the suit was barred and dismissed the same with costs. Plaintiffs appeal to the District Court failed.

(3) The plaintiff thereupon came to the High Court in Second Appeal which was heard by Mr. Justice Bavdekar. He did not accept the view of the Courts below. He held agreeing with the Calcutta High Court that the award had a factual existence but no legal existence. He also held that it is only a valid award which is a defence to a suit. In the result he set aside the decisions of the Courts below and remanded the suit for disposal in accordance with law. He, however, gave leave under Clause 15 of the Letters Patent and hence this appeal.

(4) The question, therefore, which falls to be decided is whether the award between the parties had the result of preventing the plaintiffs suit on his original cause of action.

(5) The question must necessarily be decided by reference to the Indian Arbitration Act of 1940. Section 9 of the Civil Procedure Code provides for the jurisdiction of the Civil Courts to entertain all suits of a civil nature. A party, therefore, has the right of enforcing his civil rights remedies by a suit unless it has been taken away by statute either expressly or by necessary implication as provided by Sec. 9. Mr, Rege for the appellant, insists that that remedy of the plaintiff is taken away by Ss. 31, 32 88 of the Indian Arbitration Act, and it is equally insisted by Mr. Kotwal for the other side that these sections have not either by express language or by accessary implication taken away his right to file a. safe on the original cause of action.

(6)Section 14 of the Arbitration Act requires the arbitrators to sign the award and give notice of the fact in writing to the parties. Sub-sec. (2) provides that at the request of a party the arbitrator shall cause the award to be filed in Court and when this is done the Court shall give notice of its filing to the parties. Sections 15 and 16 cm JWKW the Court to modify the award or to remit to the arbitrators for further consideration. Section 17 states that when the Court sees no cause to remit the award for reconsideration, it shall, after the time for making an application has been made and refused, proceed to pronounce judgment) according to the award, and upon the judgment so need a decree shall follow. It is further provided that there should be no appeal from that decree except on limited grounds which are not reprevant for the purpose. It appears that there does not appear any option in the Court to do anything to pass decree in terms of the award, it sees no reason to remit the award as shown by the words "shall pass" in Sec. 17. Section 33 provides that any party to an arbitration agreement or award desiring to challenge the existence or validity of the arbitration agreement or award or to have the effect of either determined shall apply to the court and the Court shall deem it just and expident, it may set down the application for hearing an evidence also and may pass such orders as it may do in suit. It appears that one of the purposes of this section is to enable the parties to file their objections to the award on a notice under See. 14. It, however, appears from the provisions of Sec. 17 of the Arbitration Act, that it was intended that the

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