M. S. H. QURAISHI, J.-The common question arising in these two petitions is whether an award made out of Court during the pendency of litigation can be considered as an agreement or compromise for adjustment of the suit under Order XXIII, rule 3, C. P. C. Even in the absence of consent of all the parties. The view taken by the Madras High Court in Subharaju v. Venkatramaraju (1) and Arumuga v. Balasubramania (2) was that it could be which view has been followed by some other Indian Courts vide Salima Bibi v. Muhammad Ibrahim (3) and Rameshwar Lal v. Mangi Lal (4). But a contrary view was taken in Hari Prashad v. Mst. Soogni Devi (5), Moradhwaj v. Bhadar Das (6) and Asmatennessa Bibi v. Arju (7). The High Court has in the present case followed the contrary view and held that consent should be accorded after the award and not when the award did not even come into existence".
2. In Muhammad Saleem v. Muhammad Akram (8) this Court had held "But if the award has been made in an arbitration out of Court and the {{FOOT NOTE}}
(1) AIR 1928 Mad. 1025 (2) AIR 1945 Mad. 294
(3) AIR 1962 Andh. Pra. 123 (4) AIR 1963 Pat. 374
(5) AIR 1921 Lah. 232 (6) AIR 1955 All. 353
(7) PLD 1967 Dacca 603 (8) PLD 1971 SC 516 {{FOOT NOTE}} ' award has neither been filed nor made a rule of Court then the parties will be entitled to sue or defend on the basis of that award if it has been accepted and acted upon by the parties by mutual consent". However, the provision of Order XXII, rule 3, C. P. C. Had not specifically come up there for consideration. It is, therefore, considered necessary to examine the point in controversy so as to lay down an authoritative pronouncement by this Court.
3. Leave to appeal is accordingly granted in both the petitions. Security amount shall be Rs, 2,500 in each case.