1. The question of law arising in this case is whether the defendant is entitled to rely upon an award of arbitrators (Ext. C) dated the 7th April, 1948, in support of his defence though the award was not filed in court under Section 14 of the Arbitration Act and no decree was granted in terms of the award under the provisions of Section 17 of the same Act. It was argued on behalf of the defendant-appellant that the lower appellate Court was erroneous in holding that the award cannot be taken into evidence, nor can it be set up by the defendant in support of his own case.

In support of this argument learned Counsel relied upon a decision of a Division Bench of this High Court in Government of India v. Jamunadhar Rungta : AIR 1960 Pat 19 [LQ/PatHC/1958/196] , consisting of Rai and S. C. Prasad, JJ. holding that the existence of an arbitration agreement or award may be set up as a bar in defence to a suit based on the original cause of action arising out of rights and titles which formed the subject matter of such an agreement or award

The learned Judges constituting the Division Bench proceeded upon the view that Section 32 of the Arbitration Act only barred a suit involving a decision upon the existence, effect or validity of an arbitration agreement or award, but the section did not preclude the defendant from putting forward in defence an award which had been fully performed by him but which had not been tiled under Section 14 of the Arbitration Act and according to which a judgment was not pronounced or a decree given under Section 17 of the Act. In our opinion the decision of this case is not authoritative because it is contrary to the decision of the Full Bench of this Court in Seonarain Lal v. Prabhu Chand : AIR 1958 Pat 252 [LQ/PatHC/1958/6] and also to an earlier Division Bench decision of this Court in Lachhuman Singh v. Makar Singh ILR 32 Pat 604 : AIR 1954 Pat 27 [LQ/PatHC/1953/99] .

In the Full Bench decision, Sinha, J., who pronounced the opinion of the Full Bench, rejected the argument advanced by Mr. B, C. De in that case that though a suit may be held to be barred except in accordance with the provisions of the Act, a defence was not barred, and, therefore, a person could refer to an award by way of defence. This argument was rejected by the Full Bench on the ground that the only way to challenge the validity or otherwise of an award was by filing the award in Court under the Act and taking a decision upon it in terms of the award, and, therefore, the matter could not be agitated even by way of defence in proceeding other than a proceeding envisaged by the Act itself. At page 257 of the report, Sinha, J. states as follows :

"It was argued by Mr. B. C. De, for the appellant, that, though a suit might be held to be barred except in accordance with the provisions of this Act, a defence is not barred, and, therefore, a person-can refer to an award by way of defence, but Section 49 of the Registration Act will be a bar to the receiving of such an award in Court. The argument, in effect, was that, if a Court of law has to consider the award, even though it be by way of defence, it cannot be said that an award, without being made a rule of the Court under Section 17 of the Act, cannot be said to be of no effect and value. Section 49 of the Registration Act says that :

No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall

x x x x

(c) be received as evidence of any transaction affecting such property or conferring such, power, unless it has been registered.

In my judgment, there is no substance in this contention as well. If the only way to challenge the validity or otherwise of an award is by filing the award in Court under the Act and taking a decision upon it in terms of the award, then the matter cannot be agitated even by way of defence in a proceeding other than a proceeding envisaged by the Act itself. In ILR 32 Pat 604 : AIR 1954 Pat 27 [LQ/PatHC/1953/99] the same view was taken and it was held :

If the plaintiff-respondents could not bring a suit to set aside an award, the appellant could not also plead the existence of an award by way of defence in a suit, when he had taken no steps under the Arbitration Act to file the award.

and the Madras decision in Suryanarayana Reddy v. Venkata Reddy : AIR 1948 Mad 436 [LQ/MadHC/1948/16] : ILR (1949) Mad 111 to the effect that Section 32 of the Arbitraton Act had no application to a defence, was not followed, and that case further observed:

If the Arbitration Act, 1940, applies, then the appellant will be precluded from putting forward an award which was never filed in Court by any of defence to the suit for partition. Speaking with great respect, I doubt the correctness of the Madras decision which has put a narrower view on Section 32 of the Arbitration Act, 1940.

The same view has been expressed in an earlier Division Bench decision of this High Court in ILR 32 Pat 604 : AIR 1954 Pat 27 [LQ/PatHC/1953/99] by Das and Sinha, JJ. In the course of his judgment, Das, J. dissented from the opinion of the Madras High Court in Moolchand Jothajee v. Rashid Jamshed Sons and Co. : AIR 1946 Mad 346 [LQ/MadHC/1945/364] and held that the scheme of the Arbitration Act, 1940, was to prevent the parties to an arbitration agitating a question relating to the arbitration in any manner other than that provided by the Act, and if the plaintiff could not bring a suit to set aside an award, the defendant could not also plead the existence of an award by way of defence in a suit, when he had taken no steps under the Arbitration Act to file the Award, At p. 609 of the report (ILR Pat); (at p. 29 of AIR), Das, J. has observed as follows:

"If the scheme of the Arbitration Act, 1940, is to prevent the parties to an arbitration agitating a question relating to the arbitration in any manner other than that provided by the Act, then the appellant cannot be in a better position than the plaintiffs-respondents. If the plaintiff-respondents could not bring a suit to set aside an award, the appellant could not also plead the existence of an award by way of defence in a suit, when he had taken no steps under the Arbitration Act to file the: award. Mr. A. C, Mitra, appearing for the appellant, has relied on two Madras decisions. In : AIR 1948 Mad 436 [LQ/MadHC/1948/16] : ILR (1949) Mad 111 it was held that Section 32 of the Arbitration Act, 1940, did not preclude a defendant from putting forward an award which has been fully performed by him but which was not tiled 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 plaintiffs claim which was the subject-matter of the reference and the award. It is to be noted that in the Madras case the award was made on the 9th March, 1943, that is, after the coming into force of the Arbitration Act, 1940, therefore, the question whether the Arbitration Act applied to awards made before the coming into force of that Act did not arise for decision before their Lordships. Their Lordships did, however, take somewhat narrower view of Section 32 of the Arbitration. Act, 1940 -- narrower than the view taken by Leach, C. J. in Moolchand Jothajees Case, : AIR 1946 Mad 346 [LQ/MadHC/1945/364] . Their Lordships took the view that the inhibition in Section 32 was confined merely to a plaint by which a decision upon the existence, effect or validity of an award was sought. Speaking for myself, I find it somewhat difficult to confine the words of Section 32 of the Arbitration Act, 1940, to a plaint only. The latter part of Section 32, which I have already quoted, is comprehensive enough to preclude, to use the words of Leach, G. J., any of the parties to an arbitration from agitating a question relating to the arbitration in any manner other than that provided by the Act."

In our opinion the law is laid down correctly in the earlier Division Bench decision of this Court in ILR 32 Pat 604 at p. 609: (AIR 1954 Pat 27 [LQ/PatHC/1953/99] at p. 29) and also in the Full Bench decision of this Court in : AIR 1958 Pat 252 [LQ/PatHC/1958/6] which must take precedence over the decision of the later Division Bench decision in : AIR 1960 Pat 19 [LQ/PatHC/1958/196] . We accordingly hold that the lower appellate court has taken the right view of law in this case and the argument addressed by Learned Counsel on behalf of the appellant must be rejected.

2. For these reasons we hold that there is no merit in this second appeal, which is accordingly dismissed with costs.