The question in this appeal 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 award.

The short facts are as follows:The plaintiff, the first respondent here, is the son of one Bayappareddy by his first wife. The appellants who were defendants 1 to 4 in the Court below are Bayappareddy’s sons by his second wife. The fifth, sixth and seventh defendants are respectively the younger brother, the second wife and the mother of Bayappareddy who died on 14th March, 1942. The plaintiff claimed a partition of the suit properties on the ground that the fifth defendant, his uncle, is entitled to a half share, and the plaintiff and defendants 1 to 4 are entitled to the other half in five equal shares. The plaint mentioned a reference to arbitration made by the plaintiff and defendants 1 to 4 by an agreement, dated 9th December, 1942, which resulted in an award dated 9th March, 1943. The plaintiff however alleged several grounds of invalidity against the award. These were found against by the Court below, and the decision of the lower Court in this respect has not been challenged before us. The plaint went on to state that, notwithstanding the award which had earlier been stated to be invalid, the plaintiff was entitled to a partition decree. The fifth defendant alleged that he and Bayappareddy became divided in 1941 and that he had thereafter no concern with the properties which had been taken by Bayappareddy for himself and his sons. Defendants 1 to 4 supported the fifth defendant in this regard and relied principally on the award in bar of the plaintiff’s claim. They had been directed to pay Rs. 19,000 to the plaintiff under the award, on or before 25th April, 1943. On that date the amount was tendered by the first defendant but the plaintiff refused to receive it, and the amount was thereupon deposited in the Anantapur Co-operative Central Bank, due notice of which was given to the plaintiff. The award was also registered.

All these facts were found in favour of the defendants by the Court below. The learned Subordinate Judge however held that the defendants’ plea based on the award could not be entertained in view of the provisions of the Arbitration Act. In this view, he proceeded to pass a preliminary decree for a division into five shares of the properties described in Ex. D-4 series and Ex. D-3 and gave certain directions regarding the liabilities of the family, the claims of the sixth and seventh, defendants for maintenance and the marriage expenses of an unmarried sister of the plaintiff and defendants 1 to 4.

On behalf of defendants 1 to 4 who are the appellants in this appeal the principal argument is that the Arbitration Act does not prohibit the raising by a defendant of such a plea as has been raised by them in this case. The appellants counsel, Mr. Subba Rao has referred to Bhajahari Saha Bamkya v. Behary Lal Basak1and certain earlier and later decisions to the effect that before the coming into force of the Arbitration Act, 1940, a valid award was operative even though neither party sought to enforce it by a suit or by an application under the appropriate provision in the Code of Civil Procedure and that after the giving of such an award, no party could fall back on the cause of action which was the subject-matter of the reference to arbitration and which was merged in and extinguished by the award. It is argued that the position is in no way different even after the Arbitration Act, when, at any rate a defendant who has carried out his obligation, under the award asserts it in defence of a claim based on the cause of action in respect of which the award is give