(1.) THIS appeal is against the order of remand made by the learned District Judge of South Arcot directing that the appellants before him should apply under the Indian Arbitration Act to obtain relief under the relevant provisions of that Act relating to the award which was set up by them in the Court of first instance. The suit itself was by the uncle of the present first appellant for possession of the suit properties as belonging to him under a certain sale deed executed by the mother of the present first appellant, the 5th defendant in the suit. The defence to the action was that the sale deed by the mother of the first appellant was only a nominal and sham one and no rights passed under that to the respondent. An additional written statement was also filed by the present first appellant in which he contended that the suit by the plaintiff was barred and was not competent for the reasons that there was an award between him and the respondent and in the face of that award the plaintiff respondent was not entitled to file the suit claiming title and possession of the properties. The learned District Munsif while finding in favour of the respondent that he had title to and possession of the properties however held on the issue as to whether the suit was barred and was incompetent by reason of the award set up by the 1st appellant, that the suit was not competent and therefore dismissed it. On appeal by the respondent the learned District Judge holding that it was not open to the Court to give a decision even about the existence and validity of the award, remanded the suit to the lower Court directing that all that could be done was that the 5th defendant should get a determination under the proper provisions of the Arbitration Act about the existence and validity of the award. Against this order of remand the present appeal has been preferred.
(2.) THE point that arises for consideration is whether in the circumstances of the case as appear from the pleadings it was open to the first appellant to set up in defence to the suit an award and whether it was proper on the part of the trial Court to hold that the existence of the award Pleaded by the first appellant was sufficient answer to the claim by the plaintiff respondent. THE learned counsel for the first appellant relies upon the decision of a Bench of this Court in 'Suryanarayana Reddi v. Venkatareddi', ILR (1949) Mad 111 where Happell and Govindarajachari JJ. have held that Section 32 of the Arbitration Act does not preclude the defendant from pleading the existence of an award in answer to the claim from the plaintiff for title and possession of properties. Section 32 is as follows: