1. We have decided to dismiss this appeal on the simple ground that the defendant having deliberately refused to utilise the machinery provided by Section 19, namely, by applying for a stay, must be taken to have waived his right to arbitration. We would merely and that we are not prepared, as at present advised, to go the length of the decisions in Ram Prosad Surajmull v. Mohan Lal Lachmi Narain 60 Ind. Cas. 895 : 47 C. 752 and Appavu Rowther v. Seeni Rowther 42 Ind. Cas. 514 : 41 M. 215 : 33 M.L.J. 177 : 6 L.W. 243 and to hold that in all such cases an award must necessarily be set aside. It must be borne in mind that some of the observations of Lord Justice Fletcher Moulton relied upon were unnecessary for the decision of the case, and were not adopted by the other members of the English Court of Appeal and that the case was one in which the circumstances were peculiar. We are not prepared to adopt, without qualification, the view which the Madras High Court seems to have adopted in, Appavu Rowther v. Seeni Rowther 42 Ind. Cas. 514 : 41 M. 215 : 33 M.L.J. 177 : 6 L.W. 243 referred to above, that the moment a suit is brought the arbitrators have become functus officio and any award made by them is without jurisdiction. That statement must be qualified by the existence of the power of stay contained in the Second Schedule to the Civil Procedure Code, or in Section 19 if the arbitration is one under the Act of 1899. This power may be taken advantage of by the other party to the suit applying for a stay of the suit brought against him.
2. Subject to these remarks, we dismiss this appeal with costs.