LODHA, J.—This is a first appeal by the defendants arising out of a suit for recovery of damages on account of the alleged breach of contract on their part to take delivery of 485 bales of gunny bags which they had contracted to purchase from the plaintiffs. In order to appreciate the various questions which have been canvassed on behalf of the appellants, it would be necessary to set out the facts leading to this litigation. 2. The case of the plaintiff-respondents is that they carry on business at Sambhar along with one Ramvallabh who has been made a proforma-defendant, and defendants Nos.l to 3 also carry on business at Sambhar under the name and style Firm Birdhichand Sumermal, which is a partnership firm. It is alleged by the plaintiffs that on Magh Badi 4, Smt. 2003 equivalent to 10-1-47 the defendant firm Birdhichand Sumermal purchased bales of gunny bags from the plaintiffs in two lots to be delivered on Fagan Sudi Poonam, Smt. 2003 equivalent to 7-3-47, one of 225 bales at the rate of Rs. 80/14/- per hundred bags and the other of 260 bales at the rate of Rs. 80/15/- per hundred bags. Thus, the total contractual price of these 485 bales of gunny bags came to Rs. 1,96,203/2/-. It was averred in the plaint that this transaction was entered into between the parties according to the usage prevalent in the market with respect to such transactions. It was specifically stated that according to the usage, the delivery of the bales could be given and taken within a period of five days from the due date i.e. upto Badi 5th of the next month* The plaintiffs case is that the defendants neither offered the price of the bales nor came forward to take delivery of the same. Consequently, oh Chait Badi 1, i.e, 8-3-47, the plaintiffs gave a registered notice to the defendants to take delivery of the bales which were lying in their godown on payment of the price. A copy of this notice has been placed on the record and marked Ex. 11. This notice was delivered to the defendants on 10-3-47 and the postal acknowledgment signed by one Champalal on behalf of the defendants has been placed on the record and marked Ex. 10. A copy of this notice has been placed on the record and marked Ex. 11. This notice was delivered to the defendants on 10-3-47 and the postal acknowledgment signed by one Champalal on behalf of the defendants has been placed on the record and marked Ex. 10. The defendants, however, did not give any reply to this notice and, therefore, another notice was given by the plaintiffs to the defendants on 12-3-47 asking the latter that they may take delivery of the stipulated bales on 13-3-47 on payment of price of the same to the Punjab National Bank Ltd., Sambhar. This notice was delivered to the defendants on 13-13-47. A copy of this notice has been marked Ex. 14 and the postal acknowledgment of the same is Ex. 13. The plaintiffs go on to state that even the second notice proved ineffectual and thus the defendants committed breach of contract. The plaintiffs, therefore, gave a third notice to the defendants on 14-3-47 informing them that 485 bales which the defendants had agreed to purchase but had failed to take delivery of the same, would be auctioned in the market. This notice was delivered at the defendants firm on 15-3-47 and its postal acknowledgment dated 15-3-47 has been placed on the record and marked Ex. 18. Even then the defendants did not reply and consequently the plaintiffs, it is alleged, gave a fourth notice on 15-3-47 informing the defendants that the bales would be auctioned on 16-3-47. The plaintiffs case is that when the defendants did not turn up to take delivery of the bales nor did they care to reply to any of the notices served by the plaintiffs on them, the bales of gunny bags were auctioned in the market and since the market price of these bales had considerably gone down, the plaintiffs were able to recover only Rs. 1,70,125/- as price of these bales and were thus put to a loss of Rs. 26078/2/-. To this, they added Rs. 121/-on account of commission, Rs. 1/2/- by way of miscellaneous expenses and Rs. 6080/1/3 as interest by way of damages at the rate of ten annas percent per month and thereby claimed a total sum of Rs. 32,280/9/3. 1,70,125/- as price of these bales and were thus put to a loss of Rs. 26078/2/-. To this, they added Rs. 121/-on account of commission, Rs. 1/2/- by way of miscellaneous expenses and Rs. 6080/1/3 as interest by way of damages at the rate of ten annas percent per month and thereby claimed a total sum of Rs. 32,280/9/3. The plaintiffs also stated in para No. 12 of the plaint that the parties had made a reference to the arbitrator Shri Ramnarain Jajoo on 14-4-47 and the arbitrator gave an award on 26 4-47 according to which the defendants were made liable to pay Rs. 26, 199/6/- as damages to the plaintiffs. But the defendants did not comply with the award. The plaintiffs also claimed pendente lite and future interest at the rate of ten annas percent per month. 3. Ramvallabh, defendant No. 4, who was made a proforma defendant denied that he was a partner of the defendants firm and pleaded complete ignorance about the transaction in suit. Defendant No. 2 Gambhirmal filed a written statement on behalf of himself as well as the firm defendant No. 1. It was admitted that a contract for sale and purchase of 485 bales of gunny bags had been entered into between the plaintiff firm and defendant-firm as pleaded in the plaint, but the receipt of the various notices as alleged by the plaintiffs was denied. The defendants asserted that they had not committed any breach of contract and that the plaintiffs had not been put to any loss on account of this transaction. It was further pleaded that the plaintiffs had no ready bales of gunny bags with them to be delivered in pursuance of the contract and thus the plaintiffs were neither ready nor willing to perform their part of the contract. It was asserted by the defendants that they had sent their man on the due date, namely, Fagan Sudi Poonam, Smt. 2003, to take delivery of the bales from the plaintiffs but the plaintiffs had no bales with them and were thus not at all in a position to perform their part of the contract. As regards the quantum of damages, it was pleaded that the plaintiffs were only entitled to get the difference between the contractual rate and market rate prevalent on the due date or upto the extended date. As regards the quantum of damages, it was pleaded that the plaintiffs were only entitled to get the difference between the contractual rate and market rate prevalent on the due date or upto the extended date. The defendants also denied having appointed Shri Ramnarain Jajoo as an arbitrator as well as the award, if any, were incompetent and, in the alternative, it was further pleaded that if any award is held to have been given, the suit by the plaintiffs is not maintainable. 4. The trial court framed fourteen issues in all and after recording the evidence produced by the parties, the learned Senior Civil Judge, Jaipur District, Jaipur, decreed the plaintiffs suit in part and held that the plaintiffs are entitled to receive Rs. 16, 753/2/ as damages from the defendants. It was further directed that the decretal amount will carry interest at the rate of three percent per annum from the date of the suit, that is, 3-2-50, upto the date of payment. The rest of the plaintiffs claim was dismissed. 5. Aggrieved by the judgment and decree of the trial court, the defendants alone have filed this appeal, but the plaintiffs have not preferred any appeal with respect to that part of their claim which has been dismissed by the trial court nor have they filed any cross-objection. 6. Mr. Joshi, learned counsel for the appellants, has urged the following points:— . (5) that the plaintiffs could not have brought a suit on the basis of the original cause of action as the same had merged in the award pleaded by the plaintiffs themselves in para no. 12 of the plaint and, therefore, the suit is incompetent. 7. ... ... ... ... ... ... ... ... ... 8. It now remains to deal with the last point urged by the learned counsel for the appellants, namely, that in view of the fact that the plaintiffs had pleaded a private award, the present suit on the basis of the original cause of action is not maintainable. In para 12 of the plaint it is stated that in respect of the bales of gunny bags in dispute, the parties had referred the matter on 14-4-47 for arbitration to Ramnarain Jajoo who gave the award on 26-4-47 and declared that the plaintiffs are entitled to recover Rs. 26,199/6/- as damages from the defendants, but the defendants did not pay anything. 26,199/6/- as damages from the defendants, but the defendants did not pay anything. In the written statement filed by the contesting respondents, they pleaded that they did not submit the matter for arbitration to Ramnarain Jajoo, and Tikamchand, another partner of the defendant-firm, had no authority on behalf of the defendant firm and defendant No. 2 Gambhirmal to appoint Ramnarain Jajoo as arbitrator. It was, therefore, urged that the arbitration proceedings were against law and not binding on the defendants and the plaintiff No. 1 himself having declared the arbitration proceedings as illegal and void, is not bound by the same. In para No. 21 of the written statement, the defendants have further pleaded that, as averred by the plaintiffs themselves, if there has been an award with respect to the matter in dispute, then the plaintiffs suit is incompetent in face of the award. On these pleadings, the trial court framed Issues Nos. 8 and 9 which read as below : "Issue No. 8—Whether the parties to the suit by a valid agreement dated 14-4 47 appointed Ramnarain Jajoo as their arbitrator ? Issue No. 9—Whether the arbitrator Ramnarain by his award directed the defendants to pay the plaintiffs the sum of Rs. 26199/6/- ?" The plaintiff in his statement as P.W. 12 has stated that a written agreement to refer the matter for arbitration to one Ramnarain was executed and that Ramnarain had given a written award. There being no other evidence on record in this respect, the trial court held that the agreement for appointment of Ramnarain Jaju as an arbitrator was not proved. It decided both the issues Nos. 8 and 9 against the plaintiffs in view of the fact that neither the agreement for arbitration nor the alleged arbitrator Ramnarain had been produced. 9. It is submitted by the learned counsel for the appellants that, in the first instance, the plaintiffs suit is virtually a suit to enforce an award and is thus clearly barred under sec. 32 and 33 of the Indian Arbitration Act No. X of 1940. 9. It is submitted by the learned counsel for the appellants that, in the first instance, the plaintiffs suit is virtually a suit to enforce an award and is thus clearly barred under sec. 32 and 33 of the Indian Arbitration Act No. X of 1940. In the second place, it is urged that even if it is considered as a suit based on the original cause of action, it is not maintainable, as a valid award operates to merge and extinguish all claims embraced in the submission, and after it has been made, the submission and award furnish the only basis by which the rights of the parties can be determined and constitute a bar to any action on the original demand. 10. On the other hand, Mr. Parikh, learned counsel for the respondents, has urged that the plaintiffs do not seek to enforce the award by this suit nor the award has been made the basis of the suit. He submits that the suit has been based on the original cause of action His contention is that after the coming into force of the Indian Arbitration Act No. X of 1940, the passing of an award by itself does not extinguish the rights of the parties until such award is subjected to the process mentioned in the Act and, therefore, the present suit based on the original demand is maintainable. He has also contended that the lower court has come to a positive finding that neither an agreement to refer the subject-matter of dispute to arbitration nor the award have been proved. He has also invited our attention to the Grounds of Appeal filed by the defendants in this Court and has submitted that the finding given by the lower court in this respect has not been challenged and, therefore, it must be assumed for the decision of this appeal that there was neither an agreement for referring the subject-matter of dispute to arbitration nor any award was made. 11. 11. It is true that even though the plaintiffs pleaded in the plaint that the matter in dispute had been referred to the arbitration of one Ramnarain Jaju who had also given an award, but the plaintiffs did not produce any substantial evidence in support of this allegation except the bald statement of P. W. 12 Ramdeo to the effect that one Ramnarain was appointed as an arbitrator by the parties by a written instrument and a written award had been given by him. Thus, on this scanty material, the lower court, in our opinion, was justified in coming to the conclusion that the plaintiffs had failed to prove that there was any agreement to refer the subject-matter of dispute to arbitration or that any award had been given in this respect. In this view of the matter a question of extinguishment of the original cause of action does not arise at all, and the argument of Mr. Joshi can be disposed of on this finding alone that there was no agreement to refer the subject matter of the dispute to arbitration and there was no award at all. But Mr. Joshi has argued that when the plaintiff has himself admitted that there was an award with respect to the subject matter in dispute even in absence of any proof to that effect the plaintiffs would be debarred from relying on the original cause of action as according to Mr. Joshi, the correct legal position is that an award even if not made a rule of the Court would operate to extinguish the original cause of action. We would, therefore, address ourselves to the question whether an unfiled award would operate as a bar against a party to bring a suit on the original cause of action? 12. It has been candidly conceded by Mr. Parikh, learned counsel for the respondents, that after the coming into force of the Arbitration Act No. X of 1940, no suit can be filed to enforce a private award. This position is clear by virtue of the provisions contained in sec. 12. It has been candidly conceded by Mr. Parikh, learned counsel for the respondents, that after the coming into force of the Arbitration Act No. X of 1940, no suit can be filed to enforce a private award. This position is clear by virtue of the provisions contained in sec. 32 and 33 of the Arbitration Act of 1940 and we may reproduce these sections below for ready reference : "Sec. 32—Bar to suits contesting arbitration agreement or award—Notwithstanding any law for the time being in force, 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 as provided in this Act ?" "Sec. 33-Arbitration, agreement or award to be contested by an application— 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 : Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit." It has been held in a series of authorities that after the coming into force of the Arbitration Act, of 1940, no suit lies to enforce an award and to quote a few, we may refer to Narbadabai vs. Natverlal Chunilal Bhalakia(19), Sia Kishori Kuer vs. Bhairvi Nandan Sinha(20), Firm Gulzarimal Gheesalal vs. Firm Rameshchandra Radheshyam(21) and Kanhyalal Vishweshwarlal Mahajan vs. Ramchandra Shankar Rao Holkar(22). In our view, this position does not admit of any doubt even on a bare perusal of the scheme of the Arbitration Act itself. Sec. 2. clause (c) of the Arbitration Act provides that "Court" means a Civil Court having jurisdiction to decide the questions forming the subject-matter of the reference, if the same had been the subject-matter of a suit, but does not, except for the purpose of arbitration proceedings under sec. 21, include a Small Causes Court. Sec. 2. clause (c) of the Arbitration Act provides that "Court" means a Civil Court having jurisdiction to decide the questions forming the subject-matter of the reference, if the same had been the subject-matter of a suit, but does not, except for the purpose of arbitration proceedings under sec. 21, include a Small Causes Court. Sec. 32 clearly 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 as provided in this Act. Consequently, a court proceeding to hear a suit for enforcement of an award will be acting without jurisdiction since, as a court of general jurisdiction, its jurisdiction to hear the cases of such nature is curtailed by the provisions of this Act. We, therefore, do not think it necessary to pursue this aspect of the case any further and accept the contentions of the learned counsel for the appellants that a suit for enforcement of an award after the coming into force of the arbitration Act, 1940 cannot lie. 13. The question therefore arises whether the present suit is one for enforce-ment of the award. But for the fact that a reference has been made in para No. 12 of the plaint that an arbitration agreement had been made and an award had been given, there is nothing else in the plaint to show that the plaintiffs relied upon the alleged arbitration agreement and award for obtaining any relief against the defendants. They have claimed the amount of damages not on the basis of the alleged award but on the original cause of action. The amount of damages they have claimed is undoubtedly the same, which, according to them, was arrived at by the arbitrator, but to that amount, they have added certain more items. They have narrated in the plaint full facts right from the commencement of the agreement between the parties for sale and purchase of the goods in question and have thus based the suit on the original demand. They have narrated in the plaint full facts right from the commencement of the agreement between the parties for sale and purchase of the goods in question and have thus based the suit on the original demand. In Para No. 15 of the plaint pertaining to the cause of action, the plaintiffs have specifically stated that it arose between 12-3-1947 and 16-3-1947 at Sambhar when the defendants committed breach of contract and the goods were resold by the plaintiffs in the market. It is significant that neither the alleged date of appointment of the arbitrator nor the alleged date of award by the arbitrator have been pleaded as constituting the cause of action for filing the suit. Thus, we find it difficult to accept the contention advanced by Mr. Joshi that the present suit is not a suit for enforcement of the award. 14. We now come to the next contention of Mr. Joshi that in face of the award, as alleged by the plaintiffs in their plaint, a suit based on the original cause of action is incompetent. From the facts we have narrated above, it would be amply clear that none of the parties took any steps for making the alleged award a rule of the Court according to the provisions of the Arbitration Act No. X of 1940. Of course, once an award has been made rule of the Court and judgment has been pronounced according to the award and a decree has followed, even no appeal shall lie from such a decree except on the ground that it is in excess of, or not otherwise in accordance with, the award (vide Sec. 17 of the Arbitration Act of 1940). The important question, which we are therefore called upon to decide is, whether after the coming into force of the Arbitration Act of 1940, the original cause of action is extinguished and gets merged into the award as soon as the award is given ? If this is so, undoubtedly the plaintiffs will have to be nonsuited. But, on the other hand, if the original cause of action remains alive and does not get merged in an unfiled award, the plaintiffs suit will be maintainable. 15. In support of his submission the learned counsel for the appellants ha? placed strong reliance on a single Bench decision by Modi J. in Firm Gulzarimal Gheesalal vs. Firm Rameshchandra Radheyshyam(21). But, on the other hand, if the original cause of action remains alive and does not get merged in an unfiled award, the plaintiffs suit will be maintainable. 15. In support of his submission the learned counsel for the appellants ha? placed strong reliance on a single Bench decision by Modi J. in Firm Gulzarimal Gheesalal vs. Firm Rameshchandra Radheyshyam(21). This was a defendants appeal arising out of a suit for recovery of damages on account of breach of contract on the part of the defendants to sell certain quantity of Gud at a certain rate to the plaintiffs. The plaintiffs claimed decree on the basis of the original dealings between the parties and alternatively a decree was also claimed in accordance with the award of the Panchas dated 11-7-1951. The defendants denied the transaction in toto, but admitted that the dispute between the parties had been referred to arbitration but it was contended that the Panchas had misconducted themselves, and therefore, the award given by them was not binding on the defendants. The trial court found that the award was illegal and that the suit was maintainable on the original cause of action. This view was upheld by the Civil Judge in appeal. It was contended by the defendants in the High Court that the plaintiffs suit was not maintainable inasmuch as it was virtually a suit to enforce an award. The second question canvassed before the learned Judge was that the plaintiffs suit on the original cause of action was not maintainable because the plaintiffs themselves had come forward with a case that the very dispute between the parties had been referred to an arbitration and that an award was given. On the first question the learned Judge came to the conclusion that in view of sec. 32 and 33 of the Arbitration Act of 1940 it was not open to the plaintiffs after coming into force of the Arbitration Act of 1940 to file a suit to enforce the award and the only remedy is to file an application under sec. 33 of the Act and have the award enforced according to the procedure laid down in the Act itself. As already observed by us above this view does not admit of any doubt, and the learned counsel for the respondents has also rightly not contested the correctness of this view. 33 of the Act and have the award enforced according to the procedure laid down in the Act itself. As already observed by us above this view does not admit of any doubt, and the learned counsel for the respondents has also rightly not contested the correctness of this view. On the second question Modi J. came to the conclusion, "that the general rule is that whenever a dispute between the parties has become the subject-matter of a submission to arbitration and has resulted in an award and such an award is pleaded by the plaintiff it is not open to him to bring a suit on the original cause of action." Mr. Parikh has challenged the correctness of this view and has argued that this was, no doubt, the law before the coming into force of the Arbitration Act of 1940 as under the old law i. e. Schedule II, Civil Procedure Code, a suit could be filed on the basis of an award and consequently under the law prior to the passing of the Arbitration Act, 1940 a valid award operated to extinguish all claims which were the subject matter of the reference to arbitration, but after the passing of the Arbitration Act 1940, argues Mr. Parikh the existence of a private award by itself without its being made a rule of the Court does not extinguish the original cause of action. 16. We have examined the argument of Mr. Parikh and the reasoning given by Modi J. in support of his view and for the reasons which we shall presently state, we are of opinion that the contention of Mr. Parikh is not devoid of substance. 17. In coming to the conclusion referred to about Modi J. relied upon Krishna Panda Balaram Panda(23), Bhajahari Saha Banikya vs. Behary Lal Basak(24), Nathulal vs. Beharilal(25), and Narbada Bai vs. Natver Lal Chuni lal(19). Parikh is not devoid of substance. 17. In coming to the conclusion referred to about Modi J. relied upon Krishna Panda Balaram Panda(23), Bhajahari Saha Banikya vs. Behary Lal Basak(24), Nathulal vs. Beharilal(25), and Narbada Bai vs. Natver Lal Chuni lal(19). We might state atonce that Krishna Panda vs. Balaram Panda(23) and Bhajahari Saha Banikya vs. Beharylal Basek(24) were the cases decided under the law prior to coming into force of the Arbitration Act, 1940 and there is not the slightest doubt at this stage, that before the Arbitration Act, 1910 was enacted this was correct position and in this respect we cannot do better than to reproduce the following passages from the judgment of their Lordships of the Supreme Court in Kashinathsa Yamosa Kabadi vs. Narsingsa Bhaskarsa Kabadi(26) :— "Before the Arbitration Act, 1940 was enacted and award made by arbitrators appointed out of court even if it was not made a rule of the court was regarded as equivalent to a final judgment and any suit filed on the original cause of action referred to the arbitrators was held barred." Of the other two cases relied upon by Modi J, in Narbadabai vs. Natverlal Chunilal Bhalkaia(19) all that was held by Chagla C.J. was that the expression "effect of the award" occurring in sec. 32 of the Arbitration Act, 1940 is wide enough to cover a suit to enforce an award, and a suit to enforce an award is not maintainable. It was nowhere decided in this case that after the coming into force of the Arbitration Act, 1940 an unfiled award would operate to extinguish the original cause of action. The facts of this case were that the plaintiff had filed a suit for accounts of business for a limited period of partnership in respect of which the arbitrators had given their award dated 7-2-48. The suit was not in respect of the whole accounts of the partnership to be taken. It was contended on behalf of the defendant that is was not open to the plaintiff to pick and choose and to select a particular period of the partnership as the period for which accounts should be taken. The suit was not in respect of the whole accounts of the partnership to be taken. It was contended on behalf of the defendant that is was not open to the plaintiff to pick and choose and to select a particular period of the partnership as the period for which accounts should be taken. To this, the answer of the plaintiff was that this was not a suit for the partnership accounts but it was a suit to enforce the award given by the arbitrators on 7-2-1948, or, in the alternative, it was a suit to enforce the agreement arrived at between the parties to accept the award. It was held by Chagla C.J. that the expression "effect of the award" occurring in sec. 32 of the Arbitration Act, 1940 is wide enough to cover a suit to enforce an award and that if the suit is filed to enforce an award, then clearly it is not a suit to enforce an agreement which is in any way independent of the award or which has no concern with the award, but it is a suit to enforce the award itself. In this view of the matter the plaintiffs suit to enforce the award was held not maintainable and was consequently dismissed. Thus it is amply clear that Narbadabais case(19) has no bearing at all on this question. The last case relied upon by Modi J. is Nagpur case: Nathulal vs. Behari-lal (25). In that case the award was given by the arbitrators on 21,5. 1941. The plaintiff thereafter made an application to the court for filing of the award. That application was dismissed on 31 3-1942 as barred by time and the plaintiff thereafter brought the suit in respect of the same subject matter for which the award had been given. It was pleaded by the plaintiff that the award was a nullity as besides other reasons the arbitrators were not appointed according to the provisions of the Arbitration Act. It was, therefore, prayed that the award may be ignored and a decree may be passed in the plaintiffs favour on the basis of the original cause of action. The only point argued on behalf of the defendant before the High Court was that the plaintiffs suit was not maintainable by reason of the fact that the claim was referred to arbitration and resulted in an award. The only point argued on behalf of the defendant before the High Court was that the plaintiffs suit was not maintainable by reason of the fact that the claim was referred to arbitration and resulted in an award. The learned Judge of the Nagpur High Court held that the plaintiff, who had been a party to the arbitration agreement is debarred by sec. 32, and 33 of the Arbitration Act from bringing a suit on the original cause of action and he cannot ignore the award or impeach its validity. This view of the Nagpur High Court was expressly dissented from in Mohammad Yusuf v. Mohd. Hussain (PB) (9) Ram Sahai v. Babulal (10). Raro-bilas v. Durga Bhai Prasad (11), and Chandrabhaga Sadashiv v. Bhikachand (12). A view contrary to that of Nagpur High Court has also been taken in Sait Paman Dass v. T. S. Manikyam Pillai (13), K. Giresnna vs. K. Basappa(14), Pamandas vs. Manikyam(15) and Sia Kishori Kuer vs. Bhairvi Nandan Sinha(20) even though the Nagpur case has not been specifically referred to in these cases. Moreover it will be noticed that in the Nagpur case there is no discussion as to the effects of sec. 17 of the Arbitration Act, 1940. It is significant to note that the learned Judges of the Nagpur High Court have not made any reference to secs. 14 and 17 of the Arbitration Act, 1940, and the question as to the effect of the award not having been made a rule of the Court and have based their decision solely on sec. 32 of the Arbitration Act, 1940. 18. Learned counsel for the appellants further relied upon Mohammed Nawazkhan vs. Alam Khan(16), Bhajahari Saha Banikya vs. Beharylal Basak(24), Lutifallah Khudabaksh Khan vs. Muhammad Sidik(17), Gutta vs. Punnoo(18), Kashinathsa Yamosa Kabadi vs. Narsingsa Bhaskarsa Kabadi(26) and Jawaharlal vs. Union of India(19). 19. In Bhajahari Saha Banikya vs. Beharylal Basak(24), it was held, "A valid award operates to merge and extinguish all claims embraced in the submission, and after it has been made the submissions and award furnish the only basis by which the rights of the parties can be determined and, constitute a bar to any action on the original demand." 20. In Bhajahari Saha Banikya vs. Beharylal Basak(24), it was held, "A valid award operates to merge and extinguish all claims embraced in the submission, and after it has been made the submissions and award furnish the only basis by which the rights of the parties can be determined and, constitute a bar to any action on the original demand." 20. In Muhammad Nawazkhan vs. Alam Khan(34) it was held by the Judicial Committee of the Privy Council that an award is valid even if no party has sought to enforce it by summary procedure. 21. In Lutifallah Khudabaksh Khan vs. Muhammed Sidik(35) it was held that a regular suit to enforce an award is not barred under Schedule 2, para 20 of the Civil Procedure Code (1908), and further that a valid award operates to merge and extinguish all claims embraced in the submission, and constitute a bar to any action on the original demand. 22. But it must be remembered that the three cases immediately referred to above were decided under the law prior to the Arbitration Act of 1940 and therefore cannot govern the present case. 23. Gutta vs. Punnoo(36) is a Single Bench judgment and even though the case was under the Arbitration Act, 1940 the learned Judge relying on the Sind case(35) held that under sec. 32 of the Arbitration Act, 1940 once an award is given a suit on the original cause of action was barred. This case does not contain any discussion of the provisions of Arbitration Act, 1940, nor does it notice the plethora of authorities on the subject, and, therefore, the learned counsel cannot derive any support from it. 24. In Kashinathsa Yamosa Kabadi vs. Narsingsa Bhaskarsa Kabadi(26) their Lordships had no doubt noticed the divergence of judicial opinion amongst the High Courts on the question whether after the enactment of the Arbitration Act, 1940, an award made in a reference out of Court can be set up as a defence to an action filed by a party there of on the original cause of action when the award is not filed in the Court. But their Lordships observed, "It is not necessary in this appeal to express a considered opinion on this disputed question. But their Lordships observed, "It is not necessary in this appeal to express a considered opinion on this disputed question. 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." In the present case, however, it is not the defendants case that the award was accepted by the parties and was acted upon voluntarily. On the other hand, the defendants have denied the very existence of the award, and, therefore, the present case cannot be decided on the principle of award giving rise to an estoppel inter partes. 25. Learned counsel for the appellants laid great stress on the following observations of their Lordships of the Supreme Court in Jawaharlal v. Union of India (37), "Therefore, stated broadly, it would be correct to assume that the main object of introducing the provisions of Ss. 31,32 and 33 (The Arbitration Act, 1940) was to entrust the decision of the relevant disputes to the specified Court and to require the parties to bring the said disputes for the decision of the said Court (as defined in section 2(C) of the Arbitration Act 1940) in the form of petitions. Remedy by a regular suit is intended to be excluded." Learned counsel for the appellants wants us to interpret these observations in the sense that by the use of the word "disputes" their Lordships meant the disputes pertaining to the original demand of the plaintiff and not the disputes regarding the validity, effect or existence of an award or an arbitration agreement only. We have carefully gone through the whole judgment of their Lordships and are of opinion that the interpretation put by Mr. Joshi on the above cited observations of their Lordships is not correct. The case before their Lordships of the Supreme Court arose out of an application filed by the respondent Union of India under secs. We have carefully gone through the whole judgment of their Lordships and are of opinion that the interpretation put by Mr. Joshi on the above cited observations of their Lordships is not correct. The case before their Lordships of the Supreme Court arose out of an application filed by the respondent Union of India under secs. 33 and 28 of the Arbitration Act, 1940. The disputes arose between the parties to that case regarding certain contract and in pursuance of the arbitration agreement, they were referred to the two arbitrators appointed by the parties. In the course of arbitration proceedings the appellant objected to the jurisdiction of the arbitrators to deal with the matter on the ground that there was no concluded contract between the parties, and this plea made it necessary for the respondent to move the Court for a decision on the question about the existence or validity of the arbitration agreement. It was on these allegations that the respondent in its petition claimed that it may be held that there was a concluded contract between the parties containing valid arbitration agreement. After examining the various provisions of the Arbitration Act, 1940 their Lordships held, "The fact that an incidental declaration is claimed about the existence and validity of the main contract does not affect the essential character of the application. It is an application for obtaining a declaration about the existence and validity of an arbitration agreement." Thus it would be clear that their Lordships have now here laid down in this case that under the Arbitration Act, 1940 an award which has not been made a rule of the court would bar a suit on the original cause of action. 26. At this stage we may examine the scheme and some of the provisions of the Arbitration Act, 1940. Chapter II deals with arbitration without an intervention of a Court. Sec. 14 under this Chapter provides that after the award has been made and duly signed and notice thereof has been given to the parties, the arbitrators or umpire shall at the request of any party to the arbitration agreement or if so directed by the Court cause the award, together with the record prepared by them to be filed in Court and the Court shall thereupon give notice to the parties of the filing of the award. Sec. 15 prescribes the powers of the Court to modify or correct an award. Sec. 16 empowers the Court to remit the award or any matter referred to arbitration to the arbitrator or umpire for reconsideration. Then comes sec. 17 which is important for our purpose and reads thus :— "17. Where the Court sees no cause to remit the award or any of the matters referred to arbitration or to set a said the award, the court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it proceed to pronounce judgment according to the award, and upon judgment so pronounced a decree shall follow, and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award." 27. Thus the award becomes effective as soon as a judgment is pronounced by the Court according to the award and a decree follows thereon. It is further laid down in sec. 32 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 as provided in this Act. 28. A combined reading of sec. 14 to 17 and 32 makes the position clear that no suit can be filed on the basis of an award, nor does a suit lie to enforce an award and further, that no proceedings can be taken on the award till after it has been filed. As against that prior to the Arbitration Act, 1940 a valid award was an operative award by itself and there were two ways in which it could be made a rule of the Court, by an application under Sch. II of the Civil Procedure Code, or under the Arbitration Act, 1899 as the case may be, and it was also open to the party to file a suit on the basis of the award, and thus claim for its enforcement. The remedy by suit has been taken away by sec. 32 of the Arbitration Act, 1940 the effect of which has been that a suit will not lie to enforce an award. The remedy by suit has been taken away by sec. 32 of the Arbitration Act, 1940 the effect of which has been that a suit will not lie to enforce an award. In other words under the present Act, the award only becomes operative when it is made a rule of the Court. It would be necessary to bear this distinction in mind while deciding the question whether under the present Act merely passing of an award without its being made a rule of the Court has the effect of extinguishing the original cause of action ? 29. In Russell on Arbitration, 17th Edition, it is stated, while dealing with "the effect of an award", at page 275:— "A valid award on a voluntary reference operates between the parties as a final and conclusive judgment upon all matters referred, unless there is an express provision in the arbitration agreement that it shall have temporary effect only, or it is an interim award." 30. In Subbaraju vs. Venkatramaraju(20) while dealing with an appeal against the order of the lower Court, refusing to pass a decree in terms of an award the learned Judges of the Madras High Court observed that an agreement to abide by the decision on an arbitrator was a valid compromise between the parties and that on the passing of the award the compromise became complete and consequently under the old law an award had the effect of merging the original cause of action as the original cause of action was superceded by the award and the award thereafter furnished the basis by which the rights and liabilities of the parties could be determined. Thus in the absence of any statutory provision under the old law the existence of a valid award itself operated as a bar to any action on the original claim or demand. In other words under the old law an award afforded a complete cause of action to the parties in supersession of the original cause of action, and was entitled to that respect which is due to the judgment of a Court. In other words under the old law an award afforded a complete cause of action to the parties in supersession of the original cause of action, and was entitled to that respect which is due to the judgment of a Court. It was in this view of the matter that Mookerjee J, observed in Bhajahari Saha Banikya vs. Behary Lal Basak(24), "This conclusion is based upon the elementary principle that, as between the parties an award is entitled to that respect, which is due to the judgment of a Court of last resort. The award is in fact a final adjudication by a Court of the parties own choice and until impeached upon sufficient grounds in an appropriate proceeding, an award, which is on the face regular, is conclusive upon the merits of the controversy submitted, unless possibly the parties have intended that the award shall not be final and conclusive. See Commings vs. Heard(l); Sweet vs. Morrison(2) and Harris vs. Social M. Co. (3).To put the matter in another way, as the ordinary rule, a valid award operates to merge and extinguish all claims embraced in the submission, and after it has been made, the submission and award furnish the only basis by which the rights of the parties can be determined, and constitute a bar to any action on the original demand." However, if the award does not by reason of any statutory provision have the effect of merging in it the original cause of action, it would be clear that the original cause of action would still subsist even though an award has been given. It is only on the principle of an award giving rise to a cause of action that an action could lie on the basis of an award under the law prior to the Arbitration Act, 1940. The successful party, therefore, had to resort to an action on the basis of the award instead of on the original cause of action, in as much as, observed by Mookerjee J. in the passage quoted above, the award until impeached upon sufficient grounds in an appropriate proceeding was conclusive upon the merits of the controversy submitted. 30. The Arbitration Act, 1940 brought forth important changes and there are provisions in it for approaching the Court for appropriate orders right from the time when the arbitrator enters on his duties. 30. The Arbitration Act, 1940 brought forth important changes and there are provisions in it for approaching the Court for appropriate orders right from the time when the arbitrator enters on his duties. The judgment and decree passed on the award as provided under sec. 17 of the Act are only the final stage in the process. According to the scheme of the Arbitration Act, 1940, it appears to us that an award can become a rule subject to the process mentioned in the Act or a valid and enforceab|e award only when it has and unless that is done the award does not extinguish the rights of the parties on the original cause of action. A time limit has been imposed under the Limitation Act for making an application for filing the award and it would indeed be unjust to allow the parties to lie by and take no proceedings for making the award a rule of the Court and thereby allow the period of limitation for that purpose to run away, and thereafter when one of the parties brings a suit, to give a right to the other party to get the suit dismissed merely on the ground that the original cause of action is extinguished by mere passing of the award, with the result that neither the award can be enforced nor the suit can be decreed on the basis of the original cause of action. Therefore, if a party desires to rest his case on an award, then he can only do so successfully if he has taken the steps to have it filed in the court and made a rule of the court. But if he does not choose to do so then in our view he cannot be allowed after the lapse of considerable period of time, to plead the award in answer to a suit that may be brought against him on the original cause of action. But if he does not choose to do so then in our view he cannot be allowed after the lapse of considerable period of time, to plead the award in answer to a suit that may be brought against him on the original cause of action. However, if a suit by a party is filed on the original cause of action in a case where award has been given, it would be open to the other party to make an application to get the award filed in the court, if the period of limitation for the same has not expired, and pending the disposal of the application he can ask for stay of the suit, and thereafter as soon as the award is made a rule of the court, it would be available to the defendant to plead it as a bar to the suit. There seems to be nothing wrong with this position, and Modi J. has not given any reasons for not accepting this position as correct except that there is according to him, an overwhelming authority for the proposition that the original cause of action is extinguished and merged in the award. As we have already observed above it was only under the law as it existed prior to the 1940 Act that an award operated to extinguish the original cause of action, but the position under 1940 Act is altogether different. 31. We are, therefore, in respectful agreement with the view taken in Mohammad Yusuf vs. Mohd. Hussain (FB)(27), Sait Pamandass vs. T.S. Manikyam Pillai (31), Chandrabhaga Sadashiv vs. Bhikachand (30), Sia Kishori Kuer vs. Bhairvi Nandan Sinha(20), Ram Sahai vs. Babulal(28), and K. Gireanna vs. K. Basappa(32). We are further of opinion that the view taken in Firm Gulzari Mal Gheesalal vs. Firm Ramesh Chandra Radhey Shyam(21), that even after the coming into force of the Arbitration Act, 1940 an award which has not been made a rule of the Court would extinguish the original cause of action is, with utmost respect, not the correct view. 32. Our conclusion, therefore, is that the suit brought by the plaintiffs on the basis of the original cause of action is maintainable, and no ground has been made out for interfering with the judgment and decree of the trial Court. We, therefore, dismiss this appeal with costs.