LODHA, J.—This is a second appeal by the plaintiff Moolchand whose suit has been dismissed by the District Judge, Ajmer on the ground that it is not main-tainable under the provisions of the Arbitration Act No. 10 of 1940.

2. The facts of the case may be stated within a short compass. The respondent Manakchand obtained a decree for Rs. 8000/- against the appellant Moolchand from the Court of Sub Judge, First Class, Beawar on 10-5-1954 on the basis of an award dated 26-4-1954. This decree was subsequently amended on 30-12-1954. The present suit was filed by Moolchand on 9-5-1955 for setting aside the decree dated 39-12-54 as being fraudulent, null and void. It was alleged in the plaint that the plaintiff Moolchand had neither executed any arbitration agreement in favour of the alleged arbitrator Shri Jagdish Prasad nor there had been any valid award against him. He stated that he was a servant of the defendant at his shop on a monthly salary of Rs. 35/- and had not borrowed any money from Manakchand. It was further alleged that he had not appointed Shri Mukand Chand Ranka as his counsel nor had signed Vakalatnama in the latters favour nor he had made any application for amendment of the decree. The plaintiff also alleged that he had not received any notice of the arbitration proceedings nor had ever appeared before the alleged arbitrator Shri Jagdish Prasad. The plaintiff, it is alleged, got knowledge of the decree passed against him on the basis of the award only when he received a notice under O. 21, r. 66, Civil P. C. In short his case was that a complete fraud had been played upon him and the decree thus obtained by perpetrating fraud not only upon him but on the Court also was liable to be rescinded. The averments made by the plaintiff in the plaint were stoutly denied by the defendant Manak Chand in his written statement. After recording the evidence produced by the parties, the learned Civil Judge, Beawar by his judgment dated 30-5 1959 held that the decree obtained against the plaintiff Moolchand in civil suit No. 94 of 1954 by the Sub-Judge, First Class, Beawar dated 10-5-1954 and subsequently amended on 30 5-1954 was fraudulent, null and void and was inexecutable against the plaintiff. Consequently the plaintiffs suit was decreed and a perpetual injunction was granted against the defendant Manakchand not to execute the impugned decree against the plaintiff.

3. Dis-satisfied with the judgment of the Civil Judge, Beawar the defendant Manak Chand filed appeal in the court of District Judge, Ajmer, who as already stated above, held that the plaintiffs suit was not maintainable- and in this view of the matter without going into other questions, allowed the defendants appeal, set aside the judgment and decree of the trial court and dismissed the plaintiffs suit. It is under these circumstances that the plaintiff has come in second appeal to this Court.

4. Thus the only point for decision in this appeal is whether the plaintiffs suit is maintainable?

5. Learned counsel for the appellant has urged that the view of the learned District Judge that the suit is barred under secs.32 and 33 of the the Arbitration Act, 1940 (which will hereinafter be called as "the Act") is erroneous. In support of his contention he has relied upon Banwarilal vs. Hindu College, Delhi(l), State of Bombay vs. Adamjee & Co.(2) Manicklal Memani vs. Shiva Jute Bailing Ltd.(3) and Baijnath vs. Chhotu]al (4). On the other hand learned counsel for the respondent has strenuously urged that the only course open to the plaintiff Mool Chand for avoiding the impugned decree passed on the basis of the award was to have filed an application under sec. 35 of the Act, as a regular suit for setting aside such a decree is barred under sec. 32 of the Act. In support of his contention he has placed strong reliance on Basantlal vs. Surendra Prasad (5), which according to the learned counsel, is on all fours with the present case. He has also placed reliance on Chaturbhuj Mo

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