Chandra Reddy, C. J.
1. The only question raised in these appeals is whether without the award being filed in court either a judgment could be passed in terms of the award or the alleged award could be set aside. This point arises in the following circumstances.
2. One Sanapala Subbaiah Naidu alias Subbrao died survived by his widows and leaving some properties. Succession to the estate opened in or about the year 1953. On the death of the widows, immediately disputes arose amongst several of his distant relations as to who should succeed to the estate. This was referred to the arbitration of one B. Rajagopalarao. The arbitrator made the award and presented it for registration on 24-2-1954. But the award was not engrossed on stamp paper as required under the law and the stamp duty of the value of Rs. 390/- was due. The District Registrar who took up the matter for registration, apportioned the liability for stamp duty and penalty between the parties and issued notices on 13-1-1956 to them to remit that amount. The first appellant in the C. M. A. refused to pay the amount objecting to such a demand. As the entire stamp dirty and penalty was not paid, the District Registrar refused to register it or send the original award to the Court. The respondents plaintiffs who are to get a sum of Rs. 4,000/- presented O. P. No. 65 of 1953 to pass a decree in terms of the award. The first appellant, who was required to pay a sum of Rs. 4,000/- to the plaintiffs and another, filed O. P. No. 73 of 1954 to set aside the award.
3. The Subordinate Judge declined to accept either of the two petitions for the reason that the award was not filed in Court. Aggrieved by this order, the plaintiffs as well as the defendants brought appeals to this Court.
4. The point for consideration in these appeals is whether the view of the Subordinate Judge that without an award no order could be passed either under Section 17 or Section 30 of the Arbitration Act is correct. Sri Srirama Sastry for the appellants in the C. M. A. contends that in order to enable the Court to set aside the award it is enough if a copy of the award is before the Court and since a copy of that was filed in Court the Subordinate Judge should have gone into the merits of the application.
5. To substantiate this proposition, reliance is placed by Sri Srirama Sastry on the decision of the Madras High Court in Kuppuswami Chetty v. Anantharamier, (1947) 1 Mad LJ 297: (AIR 1948 Mad 40). We do not think that there is any substance in this argument. Nor does the decision cited by the learned counsel render any assistance to him.
6. Section 30 of the Arbitration Act under which relief was claimed by the appellants is in these words:
'An award shall not be set aside except on one or more of the following grounds, namely:
(a) that an arbitrator or umpire has misconducted himself or the proceedings;
(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under Section 35;
(c) that an award has been improperly procured or Is otherwise invalid.
7. How can an award, which is not before a Court, be set aside? The section pre-supposes the production of the award into Court. Coming to the Judgment of the Madras High Court relied on by the learned counsel for the appellants, far from lending any countenance to the view he sought to press upon us, it answers his contention. Says Gentle C. J., who spoke for the Court, in the course of his Judgment;
'It is quite clear, and there is no need to refer to the decisions of the several High Courts in this country, as well as in England, that the court cannot pass judgment upon an award or set it aside or remit It back to be modified by the arbitrators unless the award has been filed in Court'.
8. In that case, the learned Judges had to decide whether when an application to the Court under Section 33 of the Arbitration Act challenging the existence of an award was presented an award should be filed in such an application while holding that the filing of an award in such a situation was not necessary, the learned Judges made the observations quoted above. No decision, which has taken a view contrary to ours has been brought to our notice. In our opinion, the filing of an award in Court is sine qua non to an order either under Section 17 making the judgment in terms of the award or to an order setting it aside on any of the grounds enumerated in Section 30.
9. It follows that the order and decree forming thesubject matter of C. M. A. No. 417 of 1957 and A. S..No. 151 of 1958 respectively have to be confirmed and.the appeals dismissed without costs. This does not preclude the parties to re-agitate this matter after the filingof the award in Court.