SAYYAPARAJU SURAYYA Vs. NEKKANTI ANANDAYYA

JUDGEMENT

(1.) THIS second appeal arises out of a suit for recovery of possession, which has been dismissed by both the Courts below. The suit was laid on the basis that there was an alienation by a limited estate holder, in favour of the plaintiff which was quite valid and binding upon the defendant, who happened to be reversioner to the estate. There was, in fact, a small cause suit on a prior occasion by this very plaintiff against this very defendant, who at the time occupied the position of a lessee, for recovery of rent. During the time the small cause suit was pending there was a reference to arbitration, not through Court but outside. The award that resulted from the arbitration declared that the present defendant was a reversioner to the estate of the last male -holder and that the plaintiff had no title to the property, which had been the subject -matter of the alienation by the widow of the last male holder. After the award, curiously enough there was still a decree passed in the small cause suit, apparently because the award was not sought to be relied upon by the defendant in answer to the claim for rent made in that suit. In this suit, which thereafter came to be instituted, questions were raised with reference to the binding character of the alienation in question and also with reference to the maintainability of the suit so far as it craved the relief of injunction against any interference by the defendant with the plaintiff's possession. The latter of the questions depended for its decision upon the fact of the plaintiff's possession on the date of the suit or upon the contrary of it. These questions are questions of fact on which there are concurrent findings, which I do not find myself able to touch in spite of the very able argument of Mr. Partha -sarathy for the appellant.

(2.) TWO interesting questions have been further raised, in the course of the hearing one at the instance of Mr. Parathasarathi for the appellant and the other at the instance of Mr. Surya -narayana for the respondents on both of which questions I must say I have listened to very able and interesting arguments. I have, after a careful consideration of what has been said by counsel on both sides in regard to both these points come to the conclusion that while the appellant's counsel is right in his submission that an injunction should have issued, at any rate, with reference to a half of the property in his client's possession, the learned counsel for the respondent is also right in his contention that it is not open to the present plaintiff to question the validity of the award that was made during the pendency of the small cause suit as above referred to.

(3.) WHILE this is the position that I am prepared to accept in favour of the appellant on the argument advanced by his learned counsel with reference to the question of injunction, I feel greater difficulty, I must say, in accept -ing the argument advanced by him by way of answer to the point which has been taken by Mr. Suryanarayana for the respondent, that so long as the award stands, unchallengeable by the other side, although unfiled, it must betaken to debar the present plaintiff from maintaining his suit. The soundness of the argument of the respondents, or of the reply of the appellant to it really depend upon the effect of Sections 31 to 33, Arbitration Act of 1940. Section 31 provides inter alia that an award may be filed in any Court having jurisdiction in the matter to which the reference relates and also that all questions regarding the validity, effect or existence of an award shall be decided by the Court in which the award has been or may be filed and by no other Court. Section 32 which like Section 33 is even more material to the present discussion, acts as a bar to suits contesting the existence, effect or validity of an award. In the full terms in which it is couched it runs as follows : 'Notwithstanding any law for the time being in force, no suit shall lie on any ground whatever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act.' Section 33 provides that: 'Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits.' The proviso to Section 33 is not material and I, therefore, do not reproduce it. On these sections there is a recent decision of this Court in Surya -narayana Reddi v. Venkatareddi, I. L. R. (1949) Mad. 111 : A. I. R.1948 Mad. 436 in which Happell and Govindarajachari JJ. held that neither these sections nor any other provision of the Indian Arbitration Act precludes a defendant from putting forward an award which has been fully performed by him, but which was not filed under Section 14 and according to which 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. This decision ia undoubtedly in favour of the respondents, who is entitled to say on the basis of it that in the present case the unfiled award operates as a bar to the present action. But, says Mr. Par -thasarathy for the appellant, the decision in that case presupposed the existence of a valid award, an award of a finished character, ag he calls it, which was subjected before it became finished to the procedure provided for by the Act for testing its validity and passing a judgment or decree in accordance with it. He contends that in the present case there was no award of that finished character, as he calls it, which can operate to render the present suit unmaintainable.