Modi, J.—This is an appeal by the defendant firm Gulzarimal Gheesalal against the judgment and decree of the Civil Judge, Kishangarh, in a suit for recovery of damages.

2. The suit out of which this appeal arises was brought by the plaintiff firm Ramchander Radheshyam on the allegations that it did business as commission agent at Madanganj, and that the defendant was a joint Hindu family firm of which Gheesalal was the manager, and that the said firm did business in the name of Gulzarimal Gheesa Lal at Nasirabad. It is admitted that there were dealings between these two firms. It is unnecessary to give particulars of the dealings between the parties in any detail, because the only dispute between them, so far as the present litigation is concerned, centers round the transaction relating to purchase and sale of 200 maunds of Gur. The case of the plaintiff was that it had purchased for the defendant 200 maunds of Gur on the 29th January, 1949, for a sum of Rs. 3350/- at the rate of 16/12/- per maund and sold the same for the defendant later as a result of which it suffered a loss of Rs. 1500/-. Certain other incidental charges were also claimed amounting to Rs. 38/10/6 and allowance was made for the money which the defendant firm had to its credit with the plaintiff, and thus the plaintiff filed the present suit for Rs 1083/14/3. The plaintiff also mentioned in paragraph four of the plaint that both parties had referred their dispute with respect to the transaction in question to certain arbitrators and that the said arbitrators had decided by their award (Ex. 1) dated the 11th July, 1951, that the defendant should settle this transaction at the rate of Rs 16/- instead of Rs. 16/12/- as claimed by the plaintiff, or, in other words, the transaction was decided to be settled by paying Rs. 150/- less than what the plaintiff had claimed. The plaintiff further mentioned in paragraph 11 of the plaint that it had called upon the defendant to comply with the award of the Panchas but the latter replied that the Panchas had neither given any notice to it to appear before them, nor had they given it any opportunity to lead evidence, and, consequently, the said award was not acceptable to it. The plaintiff, therefore, claimed a decree for Rs. 1083/14/3 on the basis of the original dealing between the parties, and, alternatively, it also claimed a decree in accordance with the award of the Panchas referred to above.

3. The defendant resisted the suit. It denied that the plaintiff had ever purchased the 200 maunds of Gur for it or at its instance. The defendant admitted that the dispute between the parties had been referred to arbitration but it was contended that the Panchas had misconducted themselves, and, therefore, the award given by them was not binding on it. Certain other pleas were also raised; but it is unnecessary to make any particular mention of them for the purposes of the present appeal.

4. The trial court found that the award was illegal and that the suit was maintainable on the original cause of action, and it gave a decree for Rs. 162/12/- in favour of the plaintiff.

5. Both parties went in appeal from the aforesaid decision to the Civil Judge, Kishangarh. The learned Civil Judge held that the transaction in question relating to the sale and purchase of 200 maunds of Gur had been proved, Further, although the learned Judge did not give any finding as regards the validity or otherwise of the award, he held that suit of the plaintiff should be decreed at the rate of Rs. 16/- per maund, and in this view of the master, he gave a decree to the plaintiff for Rs. 933/14/3. The defendant has now come up in appeal to this Court.

6. It is strenuously contended before me by learned counsel for the defendant that the plaintiffs suit is not maintainable inasmuch as it is virtually a suit to enforce an award. Learned counsel relit d on secs. 32 and 33 of the Indian Arbitration Act, 1940 (Act No. X of 1940), which came into force in this state

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