JUDGMENT : This is a plaintiff's appeal. It arises out of a suit for injunction and damages. The parties are neighbours residing in adjoining houses. 'There is a piece of land in between the houses of the parties shown as ABCDEF in the plaint map. The plaintiff claims that he is the owner in possession of this land. The defendant has recently demolished the plaintiff's wall A B and has fixed a door therein and intends to use the land aforesaid unlawfully. He prayed for an injunction to restrain the defendant from using this land and to direct him to close the opening made by him at AB Rs. 25/- were claimed as damages.

2. The defendant alleged that he had a right of way over the piece of land in dispute, that the plaintiff attempted to close the opening at AB and thereupon a dispute arose between the parties. The parties by a written agreement referred the dispute on 22-6-1950 to the arbitration of three named persons. The arbitrators inspected the locality, heard evidence and decided the dispute that very day. Their written award was to the effect that the defendant will have a right of way over the land in dispute and that he will have a right to fix a door at AB, it was alleged that the suit, being in substance to set aside the award, was not maintainable.

3. The trial court framed a preliminary issue on the maintainability of the suit in view of the existence of the alleged award, it is the common case of the parties that the award set up in defence was never made a rule of the court. The trial court came to the conclusion that the parties had referred the dispute involved in this suit to arbitration and the award is binding on them and as such the suit is not maintainable. On appeal the lower appellate court affirmed the finding and confirmed the decree. It held that the suit was barred by Sec. 32 of the Indian Arbitration Act, 1940.

4. Aggrieved with the decision of the lower appellate court, the plaintiff has come to this Court in second appeal. It is urged for the appellant that the award not having been filed in court and no decree having been passed thereof under Sec. 17, Arbitration Act. It was wholly ineffective; it does not extinguish the pre-existing rights of the parties and that the suit being based on the original cause of action is maintainable. On the other hand, the respondent contends that the suit is in substance to nullify the effect of the award and is barred by Sec. 32, Arbitration Act, 1940 and that the award constitutes a successful defence to the suit.

5. The question that arises for determination. In this appeal is the scope and effect of Sec. 32 of the Arbitration Act; whether it merely bars suits for enforcing awards or precludes an award being set up in defence also. On both these questions there is a widespread controversy among the various high courts of the country. The question whether an award which had not been made the rule of the court could be set up in defence came up before the Supreme Court in the case of Kashinathsa Yamosa v. Narsingasa, AIR 1961 SC 1077. Their Lordships noted the cases for and against on the question but stated that it was not necessary to express a considered opinion on that question.

6. Prior to the Arbitration Act, 1940, the law of arbitration in British India was contained in two enactments, the Indian Arbitration Act of 1899 and the second schedule to the C.P.C. The Indian Arbitration Act of 1899, though technically extended to the whole of India, was expressed to apply to Presidency Towns and to such other towns to which the appropriate local government may make it applicable. Broadly speaking, under that Act, if any question arose as to the validity of the reference or of the award, the party objecting had several courses open. He could the a suit for an injunction to prevent the arbitration proceedings from taking place or from being concluded. He could await the announcement of the award and thereafter apply to the Court to have the award set aside. He