JUDGMENT
Misra, J.
1. Defendant No. 1 has preferred this appeal. It arises out of the suit for redemption on the basis of a decree passed on an award in Title Suit No. 72 of 1944 of the Court of the Munsif 3rd Court, Arrah. The facts of the case, are that the suit land originally belonged to one Kuar Pandey. He died leaving behind a widow Mt. Rehmi. She came into possession of the land as a Hindu widow. She mortgaged it to defendant No. 2, Tilak Ahir, for Rs. 200/- on the 26th May, 1931. It appears that Mt. Rehmi died and defendant No. 3 Munshi Pandey as next reversioner obtained by inheritance the properties of Kuar Pandey and as such also acquired the equity of redemption in respect of the mortgaged properties. He entered into an agreement to sell the suit property to the plaintiff.
The agreement for sale was a written but unregistered document dated the 5th February, 1944. On a subsequent date, however, Munshi Pandey, the reversioner, gifted the property again to defendant No. 1 on the 19th March, 1944. The plaintiff sought specific performance of the agreement for sale and being refused by Munshi Pandey brought a suit for specific performance of contract against Munshi Pandey and his donee, defendant No. 1 Nathuni Pandey, the present appellant. This was Title Suit No. 72 of 1944. The parties to the suit referred the matter to arbitration and the arbitrators under the award gave four bighas and odd of land to each of the parties, namely, the present plaintiff and defendant No. 1, the appellant in this Court. It was declared in the award that the parties would pay off half the encumbrance on the property in the shage of the mortgage dues of defendant No. 2.
2. the plaintiff tendered the mortgage amount to defendant No. 2 and he refused to accept it. The amount was accordingly deposited under Section 83 of the Transfer of Property Act and the present suit for redemption was brought by the plaintiff. Defendant No. 3 Muushi Pandey was impleaded in this action and the plaintiff asked for partition on payment of his share of the money by defendant No. 1.
3. Defendant No. 1 pleaded that the suit was not maintainable. He also challenged the legality of the award on the ground that the award went beyond the terms of reference. There were other technical pleas also in regard to the validity of the award. Defendant No. 2 pleaded that the entire rehan was extinguished as the mortgage was already redeemed by Nathuni Pandey, defendant No. 1.
4. The trial Court dismissed the suit holding that the mortgage was not in existence as it was already redeemed by defendant No. 1. The lower appellate Court, however, reversed the decision of the trial Court overruling the objections of defendant No. 1, it held that the plea raised by defendant No. 1 with regard to the validity of the award could not be gone into the present suit in view of Section 32 of the Arbitration Act. In that view of the matter, it held that the plaintiff was entitled to a decree for redemption and recovery of possession of the suit land claimed by him after partition and separation of the share and on payment of the proportionate amount of rehan money to defendant No. 1 who had already stepped into the shoes of the mortgagee (defendant No. 2) by redeeming the rehan bond.
5. Mr. K. C. Sanyal, who appears in support of the appeal, contended that the learned Subordinate Judge erred in his view in so far as he held that Section 32 of the Arbitration Act is a bar in the way of the defendant raising the pleas with regard to the validity of the award. Section 32, if anything, should act as a bar in the way of the plaintiff bringing, the present suit. The bar in law, therefore, should operate against the plaintiff and not against the defendant-appellant.
He relied in support of his contention on a decision of this Court in the case of Ramchander Singh v. Munshi Mian, AIR 1950 Pat 48 (A), wherein it was held that the Act of 1940 (referring to Arbitration Act) was intended to and did alter the law, and one of the main objects of the Act was to provide that claims to set aside arbitration awards or challenge arbitration agreements should be made by application to Court and decided on affidavits or on other evidence if deemed expedient by the Court and not by means of a suit. What happened in that case was that a suit was brought
by one of the parties to an arbitration agreement
on which an award followed to realise a sum of Rs. 280/- with interest which was allowed to the plaintiff under the award.
The defendants maintained that they had never referred the matter in dispute to any arbitration and that even if the award was genuine/ the plaintiff was not entitled to enforce the award since it was invalid and inoperative. This Court held that the suit of the plaintiff was barred under Section 32 of the Arbitration Act. Mr. Sanyal contended that the view of their Lordships of this Court was that when the defendant raised the question with regard to the legality or operative ness of the award Section 32 would immediately come into play and the suit of the plaintiff should be held to be not maintainable. In my opinion, however, learned counsel is not correct- in this contention.
What the plaintiff in the above case was seeking to do was to enforce a right which was granted to him on a private award. It appears that the award was never filed under Section 14 of the Arbitration Act, nor did any decree follow on foot of that award. In any case, the plaintiff himself alleged that there was an award under which certain rights accrued to the plaintiff. Their Lordships accordingly held referring to the various decisions of the different High Courts that in view of Section 17 of the Arbitration Act the suit was not maintainable. The observation of Chagla J. in the case of Ratanji Virpal & Co. v. Dhirajlal Manilal, ILR (1942) Bom 452: (AIR 1942 Bom 101) (B) is to this effect:
“Section 32 specifically provides that no suit shall lie on any ground whatsoever 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 provided in the said Act, and under Section 17 of the Act, the Court has to pronounce judgment according to the award and a decree follows. It is only this decree that can be executed”.
Since in the above case considered by this Court an independent suit was filed by the plaintiff for enforcement of a right which had made him a judgment-creditor and the defendant a judgment-debtor under the award, it was held that such a claim also could not be enforced by an independent action.
6. In my opinion, therefore, Section 32 is not a bar to the suit of the plaintiff which was for redemption–a right which could not be enforced under the award but could be enforced only by way of an independent action. As the mortgagee defendant No. 2 was not a party to the award, any dispute in regard to the matter covered by the award between the plaintiff and defendant No. 1 and defendant No. 3 alone could be said to be covered by the award, and not a right which accrued to one of these parties as against defendant No. 2 (the mortgagee) who was not a party to the award.
Section 32, therefore, can be no bar in the present action of redemption. In my opinion, Section 33 of the Act provides necessary bar for defendant No. 1 to raise the plea with regard to the existence or validity of the award in the present case inasmuch as that section provides that any party to an arbitration agreement or any person claiming thereunder desiring to challenge the existence or validity of the award or an arbitration agreement, shall apply to the Court and the Court shall decide the question on affidavit. It was not even pleaded on behalf of the defendants that they were not parties to the arbitration agreement but that the award was beyond the terms of reference.
In my opinion, therefore, the learned Subordinate Judge rightly held that the present action was not barred and that the plea raised by defendant No. 1 challenging the validity of the award was barred under Section 33 of the Arbitration Act. In the present case a decree had followed under Section 17 of the Act and it was not open to the defendants Nos. 1 and 3, who were parties to the decree, to challenge the existence of the decree in a, different suit which was brought by one of the parties against a mortgagee who was no party to the award itself and against which certain rights accrued to the plaintiff under the award.
7. Mr. K.C. Sanyal further contended that since the Courts below found that the mortgage was not in existence, as it was redeemed by defendant No. 1, the present suit should be dismissed. In my opinion, there is no substance in this contention either, because under Section 92 of the Transfer of Property Act, defendant No, 1 became a subrogee in respect of the rights he acquired from the mortgagee as a co-mortgagor and was entitled to the equity of redemption. . If, therefore, defendant No. 1 became a subrogee, the plaintiff had a right to redeem him. The learned Subordinate Judge allowed that redemption against him on condition of the payment to him of the proportionate amount which he had paid to the mortgagee defendant No. 2 for redemption of the mortgage.
8. In the result, therefore, it must be held
that the suit of the plaintiff was rightly decreed
by the lower appellate Court. This appeal has
no merit. It is accordingly dismissed with costs.