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TMI Blog1959 (8) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... t on 2-5-1953, to a body of 3 arbitrators: (1) Haji Muhammad Tahir, (2) Hussain Mian and (3) Haji Shamsuddin alias Karu. That was both for the settlement of their entire controversy as also for the partition of the properties jointly owned and possessed by them. Now so far as the immovable was concerned that, as it appears from the facts on the record, included only a few houses, but the movable covered three items (a) grains, (b) utensils and (c) ornaments worth ₹ 32,000/-. The arbitrators having heard the parties gave a written award which is dated 4-5-1953, but that is signed only by two of the arbitrators namely, (1) Hussain Mian and (2) Haji Shamsuddin alias Karu. That means the award did not bear the signature of the third arbitrator, namely, Haji Muhammad Tahir. Perhaps this was due to the fact that there was among them some difference over the partition of ornaments with the result that the award, instead of resolving the dispute, aggravated it and the parties, in order to vindicate their rights, first went to the criminal Court. But the Criminal Court did nothing more than taking over the custody of those ornaments in its own possession through police, and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the list of properties to be partitioned by the proposed arbitrators was signed by the parties, on 2-5-53 when the agreement for reference to arbitration was executed, on 21-3-56 when the High Court set aside the order of this Court directing the arbitrators to divide the ornaments and on 8-4-56 when the plaintiffs asked the defendants to partition the ornaments and other properties in suit amicably . Tin's the defendants challenged by a written statement which was filed on 21-8-1956. Therein one of the pleas raised was that the suit as constituted was barred by sections 32 and 33 of the Arbitration Act, 1940; and at the trial there was a specific prayer made by the defendants that this question as a preliminary issue should be taken up first in the case. The trial Court has, accordingly, in the first instance, disposed of only that issue alone, and it is that order which is now under revision before me. By this order the Court has accepted the defence contention in terms that it cannot be said that the suit is not one to determine the validity or otherwise of the award and the effect thereof and has accordingly held that but for the fact that the award given in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvanced on behalf of the defendants in support of their application is that the trial Court is wrong to hold that an award covering immoveable property worth ₹ 100/- or upwards is compulsorily registrable as contemplated by Section 17 of the Registration Act. In other words their contention is that the Court in accepting the plea in bar as contemplated by Sections 32 and 33 of the Arbitration Act should not have made any distinction on the ground that the property covered under an award is moveable or immoveable or both. 5. Now, in my opinion, so far as the question of registration of an award in such a case is concerned, that as now accepted by a Full Bench of this Court in Sheonarain Lal v. Prabhu Chand, 1958 Pat LR 39: (AIR 1958 Pat 252), is not at all compulsory; and, therefore, instead of going into the authorities cited at the Bar for and against it I should better rest the matter here on the decision given in that Full Bench decision which has noticed practically all the important authorities on the point. Therein Sinha, J. (as he then was) with whom his other learned colleagues agree, has finally concluded the discussion on this point, in these words: What I h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper. 7. Now here it is not denied that what has been relied upon by the defendants as a plea in bar to the present suit is not a registered award, but a non-registered one. Therefore the decision of the point raised by the plaintiffs in this case rests solely on the consideration whether the proposition of law as formulated above on their behalf is true or not. 8. This point, however, also does not seem to be altogether free from difficulty. There are some decisions which have been brought to my notice and suggest that in certain circumstances such an award, even when not made a rule of the Court can be set up by way of defence as a plea in bar in any subsequent suit dealing with the same subject-matter. They are P. Suryanarayana Reddy v. R. Venkata Reddi, AIR 1948 Mad 436; Sayyaparaju Surayya v. Nekkanti Anandayya, AIR 1951 Mad 525. In both of them the principle of law as laid down therein is that a party to an award is not precluded by the provisions of the Arbitration Act 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, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Act, 1940. A valid award was an operative award by itself and there were two ways in which it could be enforced. It might be made a rule of the Court by an application under the Civil Procedure Code or under the Arbitration Act, 1899, as the case might be, or the party might be, or the party might treat it as an independent source of title and enforce it by suit. In either case it was open to the opposite party to challenge the validity of the award. The remedy by suit was taken away by Section 32 of the Arbitration Act, 1940. and, therefore, according to the learned Chief Justice, now on the present state of law the award only becomes operative when it is made a rule of the Court . To the same effect is the view taken by Das, J. has he then was) in the case of AIR 1954 Pat 27. Therein the learned Judge, after an elaborate discussion of the matter, observed : ''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 plaintiffs-respondents coul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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