Time for filing an award.

RAMACHANDRA IYER, C.J. :- This appeal has been directed to be posted before this Full Bench on account of some divergence of judicial opinion amongst the various High Courts in India on the principal question involved in it. There has also been no uniformity of view in the several cases that have come up before this Court on the same matter.

2. The questions that fall for determination in this appeal can be formulated thus :

1. Whether an award made on a reference out of Court, and, which has not been filed into Court in accordance with the provisions of the Indian Arbitration Act, 1940 can be pleaded as a defence to a suit instituted by a party thereto on the basis of the original cause of action.

2. If the answer to the first question is in the negative, whether such an award if performed by one of the parties, can afford a good defence to an action on the original cause of action, by the other party;

3. Whether such an unfiled award if later on accepted by the parties thereto, can afford a fresh cause of action; and

4. Where an award made on a reference out of Court has not been filed into Court at the instance of any of the parties thereto within the time permitted by the law of limitation, whether it will be open to the Court to pass a decree in terms thereof, if it is produced before the Court by the arbitrators themselves; and if so, whether it would then be competent to the Court to investigate into the validity of such an award.

3. It is now necessary to set out briefly the facts which have given rise to this appeal. The appellant, the first respondent (who died pending this appeal and in whose place his legal representatives have been brought on record as respondents 8 to 18) and the second respondent constituted themselves into a partnership under an agreement dated 1-1-1949 for a period of five years. Differences, however, arose among the partners and on 14-12-1952, those differences were referred for adjudication by two arbitrators. The arbitrators made an award; dissatisfied with it, the respondents 1 and 2 filed O. P. No. 24 of 1953 in the Sub Court, Ootacamund to have it set aside. No steps were taken by any of the parties to have the award filed into Court. The respondents 1 and 2 allowed their application impugning the award to be dismissed, the award not having been filed into Court. Sometime thereafter the respondents 1 and 2 filed the suit out of which this appeal arises, for dissolution of the partnership firm, and for consequential reliefs. Objection was taken inter alia by the other partners to the maintainability of the suit on the ground that the award by the arbitrators had finally adjudicated the rights of the parties.

During the trial of the suit which was confined only to the preliminary issue on the maintainability of it, the original award appears to have been received by the Court and was marked as Ex. B-1. The learned Subordinate Judge upheld the objection of the appellant and dismissed the suit. On appeal, that decree was set aside by the learned District Judge, Coimbatore, and the suit was remanded for retrial in the light of certain observations made in the judgment. The judgment of the lower appellate Court was that an unfiled award could constitute a valid defence to a suit on the original cause of action if relied on by the defendants in the suit pleading accord and satisfaction; but it also held that if the defendants had denied the award or refused to accept the same, that would not be available to them as an answer to such a suit is a distinction the soundness of which is open to question. The lower appellate Court further held that the award having been received by the Court in the instant case during the progress of the suit, it would be competent for it to pass a decree thereon, it being open to the appellant (plaintiffs) to impugn its validity, if they failed to show that it was invalid, the respondents would be entitled to rely on it as a complete defence to the action; it on t