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 de

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