Reliance placed by defendant on an award as bar to the suit.

An interesting point has been raised by Mr. Krishnamurthi for the appellant in this case. The suit was laid by the respondent before me for a declaration of his title and for an injunction to restrain the defendant from interfering with his possession. The plaintiff rested his title upon a certain sale deed, dated nth October, 1930 and also upon a prescriptive title by enjoyment had by him all along from the date of that sale deed. The defence, so far as material to the disposal of the present second appeal, is that there was an award on a reference to arbitration which is binding upon the plaintiff and precludes him from filing this action. The learned District Munsif of Ongole dismissed the suit giving effect to the defence above referred to.

The award was pronounced on 12th January, 1944 and registered on 24th March, 1944. On 9th March, 1944, it was that the suit, out of which this second appeal arises, was instituted.

The learned District Munsif at the end of his judgment says,

"As the award was pronounced before the suit, it is not possible to accept the plaintiff’s contention that in spite of it the Court can adjudicate on the rights of the parties."

On appeal the learned Subordinate Judge of Bapatla reversed the judgment and decree of the learned District Munsif dismissing the suit, observing thus in paragraph 9 of his judgment under appeal:

"In dismissing the suit the lower Court seems to have been considerably influenced by the award, Exhibit D-3, alleged to have been given by D.W.3, Kotayya. The case for the defendant is that the disputes between him and the plaintiff, including the dispute with reference to the suit property, were referred to the arbitration of D.W.3 under the arbitration agreement, Exhibit D-1, that the arbitrator gave the award, Exhibit D-3, holding that he and the plaintiff"were entitled to the suit property in equal shares, that this award is binding both on himself and the plaintiff and that, consequently, the plaintiff cannot be entitled to the relief’s prayed for by him in the suit. The case for the plaintiff is that the arbitration agreement, Exhibit D-1, does not refer to the suit property at all, that even otherwise it is not binding on him and that the award, Exhibit D-3, is invalid in law and not binding on him. And, I do not think it is open to the defendant to rely on the arbitration agreement, Exhibit D-1, or on the award Exhibit D-3 in support of his case in the present litigation. The arbitration agreement was admittedly executed only in the year 1943, i.e., after the Arbitration Act of 1940 came into force; and, it is clear from the recent ruling of our High Court in Rashid Jamshed Sons and Co. v. Moolchand Jothajee 1 , that if a party to an arbitration wants to rely on the arbitration agreement or upon the award passed by the arbitrator, in support of his case, he must have taken steps to have a decree passed on the award as provided for in the Arbitration Act, and, in the absence of any such decree, it is not open to him to ask the Court, in another litigation, to rely on the arbitration agreement or on the award, in support of his case."

The learned advocate for the appellant has, as against this reasoning of the learned Subordinate Judge, founded upon the case in Rashid Jamshed Sons & Co. v. Moolchand Jothajee1, drawn my attention to a Divisional Bench ruling of this Court in Suryanarayana Reddi v. Venkatareddi2. The question which arose in that case, as formulated by Mr. Justice Govindarajachari who delivered the judgment of the Court consisting of Mr. Justice Happell and himself is, whether, by reason of the provisions of the Indian Arbitration Act, 1940, a defendant is precluded from putting forward an award which has been fully performed by him but which was not filed under section 14 and according to which a judgment was not pronounced or a decree given under section 17 of the Act in answer to the plaintiff’s claim which was the subject-matter of the reference and the aw