Seth Pamandas Sugharam (died) by Hardevi and Others vs T.S. Manikyam Pillai and Another

Umamaheswaram, J.—In Sait Pamandass Sugnaram Vs. T.S. Manikyam Pillai and Others, it has been held ILR AP 860 : (at p. 64 of AIR) that if a defendant has not taken steps to have an award filed and gone through the formalities enjoined by the specific provisions of the Arbitration Act, it is not open to him to set up the award as a bar to an action that may be brought against him. Following the above decision, we hold that the learned Subordinate Judge of Kurnool erred in dismissing the suit on the basis of the award which has not been filed into-Court and in respect of which a decree had not been passed. The decision of the Supreme Court in Kashinathsa Yamosa Kabadi, etc. Vs. Narsingsa Bhaskarsa Kabadi, etc., has no application to the facts of the case. The learned Judges did not express any final opinion as to whether the view taken by the Madras High Court in Pamudurthi Suryanarayana Reddi and Others Vs. Pamudurthi Venkata Reddi and Others, and Rajamanickam Pillai and Others Vs. Swaminatha Pillai (died) and Others, or the view taken by the Full Bench of the Andhra Pradesh High Court in Sait Pamandass Sugnaram Vs. T.S. Manikyam Pillai and Others, was correct. Shah, J., observed in the following tems:

"It may be sufficient to observe that where an award made in arbitration out of Court is accepted by the parties and it is acted upon voluntarily and a suit is thereafter sought to be filed by one of the parties ignoring the acts done in pursuance of the acceptance of the award, the defence that the suit is not maintainable is not founded on the plea that there is an award which bars the suit but that the parties have by mutual agreement settled the dispute, and that the agreement and the subsequent actings of the parties are binding. By setting up a defence in the present case that there has been a division of the property and the parties have entered into possession of the properties allotted, defendant No. r is not seeking to obtain a decision upon the existence, effect or validity of an award. He is merely seeking to set up a plea that the property was divided by consent of parties. Such a plea is in our judgment not precluded by anything contained in the Arbitration Act."

On the facts of the case, the award has not been acted upon and the Supreme Court decision has consequently no application. We are bound by the decision of the Full Bench of our High Court in Sait Pamandass Sugnaram Vs. T.S. Manikyam Pillai and Others, and we follow that decision in preference to the two decisions of Madras High Court viz. Pamudurthi Suryanarayana Reddi and Others Vs. Pamudurthi Venkata Reddi and Others, and Rajamanickam Pillai and Others Vs. Swaminatha Pillai (died) and Others, , relied on by the Subordinate Judge. We consequently find issue No. 1 in favour of plaintiff.

We set aside the decree of the Court be low and allow the appeal and remand the suit for a decision of the other issues. The costs will abide the result. The appellant will be entitled to a refund of the court-fee paid on the memo randum of appeal.