An unregistered Award cannot be taken into evidence for passing a judgment and decree thereon under Section 17 of the Arbitration Act, 1940, as Section 49 of the Registration Act, 1908, prohibits the admission of unregistered documents in evidence to affect immovable properties falling under Section 17 of the Act.

( 1 ) THIS appeal has arisen out of an Arbitration proceeding which was registered as a suit in the circumstances that will appear from what we will recount presently. The present appellant and the respondents are co-sharers of their joint and ancestral properties including a residential house. When disputes had arisen between them regarding enjoyment of the joint properties, one of them, namely, Narayandas De Chowdhury instituted a suit in the Court of Munsif at Kalna over disputes regarding some of the joint properties. That was Title Suit No. 120 of 1957. During the pendency of that suit the parties field an application stating inter alia that they have appointed an Arbitrator for setting the disputes regarding the subject-matter of that suit, and on their prayer that suit was stayed. In fact by an agreement for arbitration between the parties Sri Amrita Lal Mukherjee was appointed as Arbitrator to effect complete partition of all their joint properties. That agreement was executed on 5th of January, 1958. The Arbitrator made his Award concerning properties, value of which was beyond the jurisdiction of the Munsif at Kalna. The Award was Subordinate Judge at Burdwan. Narayandas De Chowdhury filed an objection to the Award on various grounds. That objection was registered as Title Suit No. 144 of 1958 in the Court of Subordinate Judge at Burdwan, and present appeal has arisen therefrom.

( 2 ) ONE of the objections taken was that the Award required registration and as it was not registered the Award could not be admitted in evidence. The learned Subordinate Judge by an order passed in the suit dated 14-2-59 directed to return the Award to the Arbitrator on a proper receipt from him, with an under taking that he would refile the same in that Court as soon as the Award was registered.

( 3 ) AGAINST that order of the learned Subordinate Judge an application for revision under Section 115, C. P. Code was made in this Court by the plaintiff in the suit, Narayandas De Chowdhury, who was the objector against the Award. Rule issued and it was registered as civil Revision No. 663 of 1959. By a judgment, a Division Bench of this Court (Banerjee and Neyogi, JJ.) set aside the order of the learned Subordinate Judge and directed the Court of Subordinate Judge to decide the objection as to registration and then decide what course it should adopt in finally disposing of the matter.

( 4 ) THEREUPON the suit was tried in the Court of the learned Subordinate Judge in March 1961. No oral evidence was adduced by any party; arguments of both the parties were heard by the learned Subordinate Judge, and judgment was delivered by him on 28th of March, 1961. By that judgment the learned Subordinate Judge, held that the Award in question was compulsorily registrable and it could not be taken into evidence for want of registration and judgement could not be passed in terms thereon under Section 17 of the Arbitration Act. The objection of Narayandas De chowdhury was upheld by decreeing the suit and the application of the Arbitratory for a judgment in terms of the Award was dismissed. Present appeal is against that judgment by Defendant No 1 in the suit.

( 5 ) AN alternative application under Section 115, C. P. Code was also filed and notice of that application were directed to and have been served on, the Respondents No objection however has been taken as to maintainability of the appeal which has been contested on merits by the Respondent No. 1 through the learned Advocate Mr. Chandra Nath Mukherjee.

( 6 ) APPEARING for the appellant, the learned Advocate Mr. Ranjit Kumar Banerjee has contended that the finding of the learned Subordinate Judge that this Award required registration is not correct and that even if it required registration, Section 49 of the Registration Act does not prevent filing of the Award in Court for passing (decree?) thereon under Section 17 of the Arbitration Act. He, therefore contends that the suit should no