1994 PLP 1530 (CLC)

"When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified: Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim." . Order XXI, rule 10 "Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been set under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof." RESUME OF CASE‑LAW

10. In case of Moraduwal v. Bhudar Das (AIR 1955 All. 353) which is a Full Bench judgment and is applicable on all fours to the facts and .circumstances of this case where the Executing Court had appointed an arbitrator by agreement between the parties to decide the controversy in relation to execution proceedings, the question was referred to a Full Bench for decision as to whether the appointment of the arbitrator by the executing Court was lawful and as to what is the value of the award submitted by the said arbitrator? Their Lordship of the Full Bench after taking note of almost all the previous judgments on the subject have held that the executing Court has no jurisdiction to refer the dispute during the course of execution proceedings to an arbitrator and further that the award rendered in pursuance of reference to such an arbitrator appointed by the Executing Court even by consent of parties cannot be considered even as adjustment or settlement of a dispute outside the Court as all the parties had not consented thereto, after the award had been rendered and filed in Court. In the said report at pages 358; 360 and 361, their Lordships have held as under:‑‑ "Which is the Court in which the award under Chap. II and an application under Chap. III shall be filed? According to the definition of the word `Court' as given in section 2(c) it is the 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." There can be no doubt that in Chaps II and III it must be a Court of original jurisdiction and the word `suit' in the definition of `Court' and in section 20 of Chap III must mean an originating proceeding and cannot include an appeal or execution proceedings. Does the word `suit' not carry the same meaning in section 21? sometimes a `suit' is said to include an `appeal' because it is a continuation of a suit in a superior Court. But that is not the sense in which the word is used in the procedural codes of India unless it is specifically provided to the contrary. In the C.P.C., in the Limitation Act (vide section 2(10) in the U.P. Tenancy Act, 1939 (Vide "Bindraban Katiar v. Qanga Ram" AIR 1940 All. 445 (O) the word suit is used as not including an appeal. The Arbitration Act incorporates the provisions of Sch. II of the C.P.C. and is in `pari materia' with that Code. the Limitation Act and the C.P.C. apply to arbitrations under the Arbitration Act (vide sections 37 and 41 respectively) words used in Acts `pari materia' are to be interpreted in one and the same sense unless the contrary appears. In Craies on Statute Law, (Sic) Edition page 125 it is stated: "Where Acts of Parliament are in `pari materia' that is to say are so far related as to form a system or code of legislation, the rule as laid down by the twelve Judges in Palmer's case (R.v. Palmer (1785) 1 Leach 352 at P. 355 (P) is that such Acts are to be taken together as forming one system and as interpreting and enforcing each other." In 'Rex v. Loxdale' (1758) 1 Bury 445 at page 447 (Q) Lord Mansfield laid down the rule thus: Where there are different statutes in pari materia though made at different times of even expired and not referring to each other they shall be taken and construed together as one system and as explanatory of each other: In `Perth Local Board v. Maley' (1904) Australia CLR 702 at 715 (R) Griffith CJ. said: "It is usual to credit the Legislature with a knowledge at the existing law on the subject dealt with and when we find that such a meaning has been constantly attributed to the word necessary 'in other Acts dealing with similar matters they may have reasonably expected that the word would in this Act be construed as having the same meaning." The provisions of the Arbitration Act in regard to arbitration in pending suits are practically the same as they were in Sch. II which were interpreted in the Full Bench of NWP High Court in case of 7 NWP 243 (D) already cited as not by themselves applying to appeals and in the other cases already cited as not applying to execution proceedings. In Chaps. II and III the word `suit' means the original proceeding in the Court of first instance. There is, therefore, no reason to think that the word suit in section 21 in the definition of the word `Court' in section 2(c) as applicable to that section has been used in any other sense. The word `suit', therefore, does not include appeals or execution proceedings and the word Court in section 2(c) refer to a Court of original jurisdiction ......

27. This bring us to the second question in the case whether an award obtained on a reference outside Court while a suit or other proceeding is pending can be treated as an adjustment under Order OXXIII, Rule 3 and under Order XXI Rule 2, Civil P.C. section 89, C.P.C. provides that':‑‑ Save in so far as is otherwise provided by the Indian Arbitration Act 1899 or by any other law for the time being in force all reference to arbitration whether by an order in a suit or otherwise and all proceedings thereunder shall be governed by the provisions contained in all second Schedule. Thus, the provisions of Sch. II were to be exhaustive of the mode in which an award could be enforced except in so far as it was otherwise provided by another law. Leaving aside cases which fell under the Arbitration Act of 1899 some Judges held that the provisions of Order XXIII, Rule 3 and Order XXI, Rule 2, C.P.C. which spoke of adjustment or compromise were that other law mentioned in section 89 and in award not obtained in the manner provided for in Sch. II could yet be treated as an adjustment or compromise or the ground that the agreement or reference itself was such an adjustment or compromise and there was a promise contained in that agreement that the `award' given by virtue of the agreement would be binding on the parties even though a party to the reference may have objections to the award. See `Subbaraju v. Venkataramaraju, AIR 1928 Mad. 1025 (FB) (Y), AIR 1941 Bom. 20 (N) and Wgajendra Singh v. Durga Kumari", AIR 1925 All. 503 (FB) (Z) per Walsh and Kanhaiya Lal, JJ, Mukerji, J. dissenting on the other hand in. ("Mating Haly v. U Ge." AIR 1939 Rang‑3W (FB) (ZI) it was‑held that there could be not adjustment of a decree; by means of an award under Order XXI,Rule 2, C.P.C. if it is objected to by any of the parties.

28. In this state of affairs opportunity was taken to clarify matters when the law of arbitration was codified by the Arbitration Act of 1940. Section 47 Arbitration Act is similar in languages to section 89, C.P.C. but a proviso has been added to the following effect: Provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of the suit by any Court before which the suit is pending. The words with the consent of all the parties interested are intended to resolve the conflict that prevailed before the Act came into force. These words obviously have reference to the award. All the parties interested must consent to award being given effect to. Where they do not so consent, the award cannot be taken into consideration as a compromise or adjustment. The consent of the parties to the reference merely and not to the award can by no stretch of imagination be deemed to be a consent to the award itself as actually made. Accordingly the proviso to section 47 has been interpreted by almost all the Courts in India as meaning that an arbitration award can be taken into consideration as a compromise or adjustment of a suit or execution proceeding only if it has been consented to by all parties concerned after the award was made. In Indramoni Mohpatra v. Nilamoni Moharna of AIR 1950 Orissa 169 (Z2) Ray, J., and Das, J. observed: But the proviso also requires in terms, the consent of all the parties interested as condition precedent for the exercise of the power to take the matter into consideration. It is to be noticed that the award cannot be taken into consideration on the application of only one of the parties nor by Court itself suo motu. The context indicates that the `consent' specified in proviso is a consent given at the time when matter is to be taken into consideration." The same view was taken in `Raghunandan Raj v. Sukhlal Rai, AIR 1952 Pat 258 (Z3), Nazir Muhammad v. Kasturachand Gomaji Co. AIR 1951 Mys 57 (Z4); Jugaldas Damodar Modi & Co. v. Pursottam Umedbhal and Co. AIR 1953 Cal 690 (ZS) and lastly 'Abdul Rahman Sahib v. Muhammad Siddiq, AIR 1953 Mad 781 (FB) (Z6) overruling the earlier decision of the same Court in Arumuga Maudallar v. Halmubramanja `Maudallar, AIR 1945 Mad 294 (Z7) in which it was held that there was nothing in the proviso to section 47 which precluded the antecedent consent of the parties to the award as given in the agreement of reference. The only case of this Court in which a reference to section 47 Arbitration Act was made in the Full Bench case in Dular Koeri v. Payag Koeri, AIR 1942 All 145 (Z8)was a case in which the arbitration was made before the commencement of the Arbitration Act, 1940 and, therefore, the case fell to be decided under the old view of the earlier decision of this Court their Lordships head than award obtained outside the Court when the suit was pending court be regarded as a compromise under Order XXIII rule

3. But the went on observing that the question had become immaterial in view? provision of section 47, Arbitration Act, when enabled this to be don, This observation was obiter and the wordings of the proviso to S. 4' were not specifically considered to give effect to an award or w adjustment in spite of the objections of one of the parties to it without examining those objections and allowing the party an opportunity to prove them would be, to my mind most inequitable. If the arbitration had been done under the provisions of the Arbitration Act every party to the reference could have an opportunity to show that the award was vitiated on account of the misconduct of the arbitrators or was otherwise unenforceable. The grounds on which an award can be set aside or remitted to an arbitrator or modified by the Court are based on equity, justice and good conscience. But simply because the award has been made without following the procedure prescribed in the Arbitration Act, the award cannot acquire such a sanctity that it cannot be challenged even on those equitable grounds which have been given statutory recognition in the Arbitration Act.

29. I am, therefore, of opinion that an award obtained without the intervention of Court in respect of matters which are the subject? matter of a proceeding pending in a Court of law can only be given effect to as an adjustment under Order XXIII, Rule 2, or under Order XXIII, Rule 3, Civil Procedure Code. If all the parties interested give their consent to this being done and not otherwise.

30. The other points arising in the case will now be decided by a Bench. Let the papers of the case be laid before the Hon'ble Chief Justice for the constitution of a Bench for deciding the appeals in the light of the opinion of this Full Bench.

31. BRIJ MOHAN LALI,, J.‑‑I agree.

32. M.L. CHATURVEDI, J.‑‑I agree." "Answer accordingly." In case of Hashmat Ali v. Muhammad Ali etc (1982 CLC 2377), a learned Single Judge of this Court has held that if an award is rendered pending a suit without leave of the Court in pursuance of an independent agreement between the parties, it cannot be enforced through a Court of law and the only exceptions is that it can be taken into consideration as a compromise or adjustment of the suit subject to the consent of the parties under proviso to section 47 and in case the respondent poses resistance thereto it cannot be enforced through a Court of law. In case of Asmatennessa Bibi v. Mu and another (PLD 1967 Dacca 603) it has been held that if the parties proceeded to arbitration without any reference by the Court, the award rendered by the arbitrator can be taken into consideration only if both the parties consented to the award being taken into consideration as a compromise or adjustment in the main suit. In case of Allah Bakhsh v. Mst. Shamshad Begum and 2 others (1990 MLD 1937) at page 194(1 of the report it has been held as under: "Reverting to the question as to whether the agreement between the parties and the award rendered by the Arbitrators was violative of the Arbitration Act, 1940 there is no dispute between the parties, that at the relevant time, the same matter was sub judice before the Civil Court. Section 47 of the Arbitration Act, 1940 provides that: "Subject to the provisions of section 46 and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder: Provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending." By virtue of this provision, the Act has been made applicable to all Arbitrations Chapter IV of the Arbitration Act, 1940 deals with arbitration in a pending suit. According to section 21, the parties can apply for an order to refer dispute to arbitration and the Court where the suit is pending has been empowered by section 23 to make a reference to the arbitration. Any reference to arbitration without the intervention of the Court where the suit is pending with regard to the same subject‑matter would be violative of sections 21, 23 and 47 of the Arbitration Act, 1940. However, under proviso to section 47 the arbitration award can be utilised as a compromise or adjustment of the suit by Court but this is subject to the condition that all the parties interested consent to it. This question was examined in detail, if I may say so with respect by my learned brother Muhammad Afzal Lone, J. in Mst. Hashmat Bibi v. Muhammad Rafi and another 1980 CLC 967 wherein it was held that the award procured in a pending suit without the intervention of the Court was a nullity and could not be made rule of Court in accordance with the provisions of sections 14 and 17 of the Act except that in a case covered by the proviso, it can be made use o1 as a compromise. It was further observed that without the consent o1 the parties the award could not be considered even as an adjustment of the suit. This view was reaffirmed by this Court in Hashmat Ali v. Muhammad Ali etc. 1982 CLC 2377. 1 am not persuaded to take a different view: The reliance of the learned counsel of Ch. Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516 is not apt as this authority has no applicability to the controversy in hand. The dispute before the Supreme Court in that case was as to whether the parties were entitled to sue or defend on the basis of an award rendered in arbitration out of Court and made not rule of Court, if it had been acted upon by them by mutual consent and whether section 32 of the Arbitration Act, 1940 bars filing of such a suit. The other dispute in the precedent case was as to whether the reference was to an arbitrator or adiator. These questions do not arise for determination in the present case." In case of Asmatennessa Bibi v. Arju and another PLD 1967 Dacca 603 it has been held that if the parties during the pendency of a suit proceed to arbitration without intervention of the Court, the award given by the arbitrator can be taken into consideration only if both the parties consent to such award after the same is rendered by way of compromise or adjustment of their dispute as per provisions of section 47 of Arbitration Act read with Order XXIII, Rule 3, C.P.C.

11. In case of S.A. Latif v. Nadir Khan (PLD 1968 Lahore 144) it has been held that the Executing Court cannot go behind the decree and if the judgment‑debtor is to avoid the decree he must do so by way of separate suit with the one exception alone that if a decree is lacking in inherent jurisdiction, validity of the same can be challenged even before the Executing Court. Objection relating to territorial jurisdiction is not one which is relatable to the inherent jurisdiction of the Court and this type of objection can even be waived before the Court which had passed the decree. In case of Abdul Ahad v. Brij Narain Rai (AIR 1935 All 269) it has been held that the Executing Court while executing the mortgage decree cannot enter into question of mortgagor's title and is bound to execute the decree as it is. In case of Krishnaya Parbhaya Ghintalwar and others v. Meghraj Paparm Teli AIR 1940 Bomby 10 it has been held that in case where the suit property has wrongly been described in the decree sheet prepared by the trial Court, it is only the Court which had passed the decree who can correct the same and not the Executing Court. In case of Matiur Rasul v. Abdul Said and others (AIR 1926 Calcutta 109) it has been held that a decree passed in the suit is binding upon the parties as well as their heirs and validity thereof cannot be challenged in the execution proceedings before the Executing Court. In case of Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Co. Ltd. and 2 others (1994 SCMR 22) Lordship of the Supreme Court has examined the scope of jurisdiction of the Executing Court during the Course of execution proceedings after taking into consideration a plathora of the case‑law on the subject at pages 24 to 29 of the report it has been held as under:‑‑ "Learned counsel for the appellant diligently argued the case and referred to a number of decisions. He referred to `Kudratulla Sarkar and others v. Upendra Kumar Ch.' (AIR 1925 Cal. 203) wherein it was observed that this is an appeal in execution proceedings by the heirs of the judgment‑debtors. The suit in which the decreevas obtained was a suit against a Cooperative Loan Society with unlimited liability and against the Secretary, the Chairman and two members who singed the bond in respect of the money lent by the plaintiff in the suit. The suit was, ‑I think clearly wrongly constituted as the Cooperative Society alone should have been sued. But the suit was decreed in part and I think it is clear from the decree and the plaint that the only possible construction that we can put upon the decree is that it was a decree not only as against the Cooperative Society but against the Chairman who as already stated was one of the defendants, personally and it has heirs who are the appellants before us. Although I think the suit was wrongly framed, it is not possible for us in execution to set aside the decree that was passed against the Chairman defendant. For some reason or other no appeal was preferred against the decree and that decree accordingly stands and I think it is impossible for us to construe the decree as we are asked to construe it as merely a decree against the Cooperative Society and as regards the other defendants as merely indicative of their ultimate liability under the provisions of the Act. The first point, I think accordingly fails and we are bound to hold that the decree‑holder is entitled to execute the decree against the heirs of the Chairman defendant. He then referred to 'Brij Mohan Das v. Mst. Pirai' (AIR 1937 Allahabad 357) where it was observed that this is a revision under section 115, C.P.C. against an order passed by the Munsif of Shahgan in execution proceedings. The appellant Brij Mohan Das obtained an ex parte decree against the opposite party, Mt. Piari, for a sum of Rs.550 in a suit which so far as the Civil Procedure is concerned could be instituted in Benares and also in Jaunpur, the plaintiff having the choice of form. The judgment‑debtor resides in Jaunpur District and the decree‑holder obtained a certificate of transfer of the decree for execution of Jaunpur. When he applied to the Court at Jaunpur for execution of high decree, the judgment‑debtor objected on the ground that the Court which passed the decree sought to be executed had no jurisdiction as he (the judgment debtor) was an agriculturist and the suit against him could be instituted only in the District in which he resided. The Court executing the decree gave effect to this objection, holding that the Benares Court had no jurisdiction to pass the decree under execution. It is contended in revision that this view is erroneous. In my opinion the order of the lower Court cannot be supported. It is not disputed that but for the Agriculturists Relief Act the Court which passed the decree had jurisdiction to entertain the suit brought by the appellant and to pass decree on proof of his claim. The opposite party did not appear and did not raise the question as regards the forums selected by the appellant. She could have pleaded that she was an agriculturist and, therefore, the suit should have been instituted in the Jaunpur District only. She did not avail herself of the opportunity to raise such a plea and allowed an ex parte decree to be passed against her. It is a well‑known rule that the Court executing the decree cannot go behind it and allow its validity to be impugned. The case in which the Court executing the decree can disregard its apparent tenor are laid down in 1934 ALJ 409 and 1935 AWR

867. The present case does not fall within any of the exceptions therein referred to. Broadly speaking it is not permissible for the Court executing the decree to embark on an inquiry into facts which if established would show that the court passing it had no jurisdiction to pass it. Where the jurisdiction of a Court to pass a decree depends on the existence of certain facts, the Court executing the decree shall refuse to take evidence in proof of those facts for the purpose of determining the jurisdiction of the Court passing the decree." Privy Council judgment in Mahant Har Kishan Das v. Satgur Prasad'(AIR 1938 PC 98) was referred to. It was laid down therein that in execution proceedings, the question as to whether the view of the Court which passed the decree is right or wrong is no longer open. He then referred to "Arbn. Jupiter General Inse. Co. Ltd v. Corporation of Calcutta" (AIR 1956 Cal 470) in which an award was made against an Insurance Co. It was sought to be set aside on various grounds but it was held that the Court does not decide the question of competence of the reference In fact it does not at all go into the question of statutory 'sabi Tv (Underlying is our) and when the statute creates disability in this respect, there is no difference between a person and a Corporation. It does not say that there can be any estoppel against Statute or consent will create statutory capacity where there is none, as indeed no Court can say it either in respect of a person or a corporation. In such cases what the Court does is not to pronounce on the question whether the award or the arbitration proceedings was void but it prevents the point being taken by a party to challenge the award if being aware of the disability of the other party he did not take such objection on the ground at the stage when the matter was referred or submitted to arbitration (1860) 30 LJ Bey. 10 Foll. He also referred to SA. Latif v. Nadir Khan (PLD 1968 Lahore 144) wherein it was observed that it is now well? established that the validity of a decree can be challenged in execution proceedings on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seize of the case because the subject‑matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject‑matter of the suit or over the parties to it. In Ahmad and Co. v. Muhammad Siddique it was held " the only ground which has been recognised by Court which can be urged in execution proceedings as regards the validity of the decree is that the Court which passed the decree had no jurisdiction to do so. Such absence of jurisdiction must be inherent. Except in such cases the execution Court has no jurisdiction to go behind the decree' He then referred to `Kazi Abdul Kader v. The Estate Pakistan Provincial Cooperative Bank Ltd." (1969 SCMR 275). It was laid down that an executing Court cannot go behind an award and determine its validity or invalidity. The executing Court is required only to execute the award as it is. This view was taken by both the executing Court and the High Court and they were correct in taking this view." Reference was made to Abdul Malek Mian v. Rostemuddin (Mokleshuddin) Sh'(PLD 1970 Dacca 743) Wherein it was laid down that it is well?settled that an executing Court cannot go behind the decree. It is true that under certain circumstances where the decree is without jurisdiction or it a nullity then the executing Court is entitled to take notice of such circumstances. Illegality in the order on other grounds, however, cannot give such scope to the executing Court. Want of jurisdiction is not the same thing as illegal exercise of jurisdiction. It is, therefore, well‑established that an executing Court cannot refuse to execute the decree because it is against law or contravenes any provision of any statute. Patent want of jurisdiction is not to be confused with the illegal exercise of such jurisdiction." He there quote "Yousaf Aziz v. Mst. Aqeela Begum and 3 others" PLD 1978 Karachi 205 wherein it was referred 'Jupiter Insurance Co. v. Calcutta Corpion." in which the facts were that the applicant participated in arbitration proceedings without protest and fully availed of the entire proceedings. Both the award passed by the arbitrator went against him. The application challenged the arbitration proceedings as without jurisdiction on the ground that the agreement for arbitration was void as the Corporation had no power under the Calcutta Municipal Act to refer any matter to arbitration of this connection refusing to entertain the objection P.B. Mukharji, J. made the following observations; It will be seen from this case that ...what the Court does. It does not decide the question of competence of the reference. In fact it does not at all go into the question of statutory disability and when the statute creates disability in this respect there is no difference between a person and corporation. It does not say that there can be any estoppel against statute or consent will create statutory capacity where there is none, as indeed no Court can say it either in respect of the person or a corporation. In the words of the Lord Chancellor which have just quoted the Court says the claimant cannot now be heard to make the objection even if the objection might have prevailed if taken in due time. In other words the measure of the Court attitude is that it disallows the party to urge his point at all, so that it has no more any occasion to decide it. In such cases what the Court does is not to pronounce on question whether the award or the arbitration proceedings was void, it prevents the point being taken by a party to challenge the award or being award of the disability of the other party, he did not take such objection on that ground at the stage when the matter was referred or submitted to arbitration.. ????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? '????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? He then referred to 'Abdul Khaliq v. Haji and another' (PLD 1983 Lahore 445 and read para 6 which is as follows;‑‑ Even if the view taken in that while deciding issue No. 3, the learned trial Court had held that the respondents were not liable to pay the amount in dispute, it would be of title avail to them. The suit was, undoubtedly decreed against all the defendants including the respondents who were arrayed as defendants Nos. 2 and 3 in the suit. The decree sheet was also prepared accordingly. The appellant too had claimed the amount in dispute from all of them. According to the judgment and decree of the learned civil Judge, therefore, the respondent were also liable to pay the decretal amount. If the respondents were not satisfied with the decree passed against them they could assail it by means of an appeal. One of them namely Mst. Sharifan together with Mst. Rehmat Khatoon who was one of the defendant in the suit, had actually filed a joint appeal which was subsequently withdrawn by them and was, therefore, dismissed. Thus, the decree had attained finality and it had got to be executed even if it was erroneously passed against respondents. The executing Court cannot rectify any mistake in the decree because it would tantamount to going behind the decree. And as ruled in the case of M/s. Haji Ahmad and Co. cited by learned counsel for the appellant, the executing Court cannot go behind the decree. In the case Ghanaya Lai and others which was also relied upon by learned counsel for the appellant it was observed by a Division Bench of the Lahore High Court `that the rule of law is firmly established that where the decree is free from ambiguity the Court of execution is bound to execute it whether it is right or wrong. In the present case the decree granted by the learned trial Court was unimbiguously against all the respondents and, therefore, it could be executed against all of them. He lastly referred to Mst. Shirr Majid v. Subarkatagin Majid and others. Learned counsel for the respondent No. 1 on the other hand relied on Muhammad Latif Khan v. Mst. Nayab Begum (PLD 1968 Karachi 758) to contend that an executing Court is competent to go behind the decree. The facts in this case were that the Chairman of the conciliation Court instead of certifying failure of conciliation proceedings for nomination of representative of a party as required by clause (b) of subsection (4) of section 5 of the Ordinance granted a decree. When it was sought to be executed it was declined on the ground that the Chairman had on the failure of the appellant to nominate his representatives, merely to certify the failure of the conciliation under subsection (4) (b) of section 5 of the Ordinance and the decree in the sum of Rs.10,000 awarded by him against the appellant is a nullity as there was no Court properly constituted under section 5(1) of the Ordinance and the decreed amount offends against the statutory requirement of section 5(4) (b) ibid. Since the defect is patent on the face of the order passed by the Chairman the executing Court below was competent to take notice of it. This Single Bench judgment is distinguishable on facts in so far as that the order, sought to be executed as a decree on the face or it showed that it was passed by an authority not properly constituted. It does not lay down that decree passed by a competent Court can be gone behind to see whether it was rightly passed or not or whether it was justified on facts or plea; properly adjudicated upon or not. Learned counsel referred to Port Muhammad Bin Qasim Authority v. M/s. National Insurance Corp. and others 1989 SCMR 100 to contend that the liability of Insurance Co. is limited to Rs.20,

000. It may be so but it had to be pleaded before the decree was passed. It was not so pleaded when the respondent No. 1 filed the written statement. When the decree was passed the respondent No. 1 filed an appeal taking up the plea but allowed the appeal to be dismissed for non‑prosecuting. So also the restoration application. The decree became final. The respondent No. 1 itself is responsible for having lost its defence. The decree has to be executed as it is. It is not permissible to go behind it and say that it should have been for so much amount and no more. He also referred to B.V. Patankar and others v. C.G. Sasty AIR 1961 SC 272 and submitted that here the Executing Court ignored the provision of the Rent Controller Order eviction of tenants and passed an order of delivery of possession in execution of a decree, the order was set aside and an order of redelivery to the tenant was passed on an application under section 47 read with section 151, C.P.C. it may be noted that in this case the Court which passed the decree was prohibited from passing the decree. Since it lacked the jurisdiction the decree is passed was without jurisdiction and void, therefore, its execution was equally without basis in law and was set aside. The case is not a precedent for the proposition that a decree passed by a competent Court can be ignored or not executed by a Court competent to execute it when there is no bars of jurisdiction in passing the decree or executing it. He also referred to Islamic Republic of Pakistan v. Muhammad Saeed' PLD 1961 SC 192 and submitted that question relating to the executability of an order or decree can be raised even in execution proceedings and it is open to the party against whom it is sought to be executed to show that it is nul and void or had been made without jurisdiction or that if is incapable of execution. Relevant facts in the precedent case were that an order passed in writ jurisdiction having not been complied with, proceeding in contempt were taken and it was urged that the order initially passed by the High Court without jurisdiction and, therefore, non‑compliance did not constitute contempt. In the case in hand, there is no question of the decree having been passed without jurisdiction. The Court passed the decree undeniably had the jurisdiction whether its decree was well ?based on facts or law did not warrant any interference in the execution proceedings. In case of Muhammad Latif v. Muhammad Hafiz and others (PLD 1954 FC 184 held that the shares which have been declared by a preliminary decree in a partition suit can be varied by the trial Court, consequent upon the death of one of the heirs and amendment of the shares can be effected even after the preliminary decree has been appealed against and has been upheld by the appellate Court as the Court can take note of subsequent events which may have happened during the pendency of a suit provided no prejudice is caused to any of the parties by doing so.. The reason being that even after passing of a preliminary decree, the suit is still pending and the right of parties have to be adjusted at the time of passing of the final decree. In case of Mst. Ilahi Noor and 4 others v. Muhammad Din (PLD 1977 SC 634) wherein during the course of execution of a decree some property was put to auction and the sale was set aside at the behest of the decree‑holder. The objection was raised that sale having become final, in a partition suit same could not have been set aside it has been held that it is the prerogative of the decree‑holder to execute the decree or not and if he settles the dispute outside the Court the said settlement shall be deemed to be a compromise within the meaning of Order XXIII, C.P.C. and, therefore, it cannot be said that the sale could not have been set aside in execution proceedings. Facts of the case very clearly show that in this judgment settlement of the dispute has been held to be permissible but it is no where are held chat the executing Court has jurisdiction to go beyond the decree even if a party does not agree thereto and even if some prejudice is caused by the amendment. |In case of Ganesh Prosad Agarwalla and another v. Monohar Lal Mullick and another (AIR 1940 Calcutta 202) it has been held that the Court which has passed a decree has the power to rectify the errors committed by the ministerial officer which has occurred due to accidental slip of pen under the provisions of section 152, C.P.C., even at the stage of execution proceedings. The law declared in this judgment also makes it clear that accidental omission and error can be rectified even by the Executing Court which had passed the decree but it is nowhere laid down in this case that the judgment can be varied in its material aspects, by the executing Court contrary to the decree, which has originally been passed in the main suit. In case of Hemanta Kumar Ghose and others v. Bajendra Mondal and others (AIR 1935 Calcutta 619) it has been held that executing Court which has also passed the decree can amend the same where there has been clerical mistake or error arising from an accidental slip of pen or omission or where the Court itself finds that the decree as drawn does not correctly state which the Court actually decided and intended to decide provided the amendment can only be made without injustice or in terms which preclude injustice and that too provided the decree has not been confirmed or reversed or superceded by the decree of the appellate Court. In case of Oudh Commercial Bank, Lid., Fyzadad v. Thakurain Bind Basni Kuer and others (AIR 1939 PC 80) it has been held that a bargain regarding rate of interest agreed upon between the parties during the course of execution proceedings can be enforced by the executing Court and it does not amount to conferring jurisdiction upon the executing Court, to amend or vary the decree and, therefore, such bargain which has been effected with consent of the parties, can be enforced by the executing Court.

12. In case of Muhammad Sharif v. Jalaluddin (1971 SCMR 594) it has been held that a decree passed on the basis of a time‑barred claim is not a nullity in the eyes of law and the executing Court is not competent to go behind the decree on the ground that the decree is based upon a time‑barred claim. In case of Syed Riaz Ahmad Shah and another v. Dayal Singh College Trust Society (1972 SCMR 237) it has been held that the executing Court is not competent to go behind the decree and to execute the decree as it is. 12‑A. In case of Province of Sindh and another v. S. Zaheeruddin Hussain (1982 CLC 175) it has been held that the ground to challenge the award rendered by an arbitrator appointed during the pendency of a suit to the effect that Advocate‑General lacked the authority to give consent to refer the dispute to the arbitrator appointed by the Court, was not allowed to be raised in revision before the learned Single Judge as the same had not been raised before the trial Court or in appeal and further the petitioner had submitted to the jurisdiction of the arbitrator and had been prosecuting the case till end. It has been further held in the judgment that such type of objection is an afterthought and lacked bona fide and, therefore, disentitles the appellant to challenge the award, due to his conduct, on the ground of lack of authority to appoint. In case of S. Zahir Huss aM v. Provinfx of Sindh and another (1981 CLC 379) where the defendants had consented to the appointment of arbitrator in a pending suit and had participated in the proceedings before the arbitrator and hence taken a chance for favourable decision, it was held that they will be estopped to challenge the award on the ground that the arbitrator was not appointed in accordance with the provisions of section 8 of the Arbitration Act. In case of Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 SC 542) it has been held that where a party to the proceedings before a Court or tribunal, enters into an agreement of his own free will for disposal of the matter, in a particular mode it cannot turn round and successfully plead that it had no legal right to give consent or that the Court or authority could not act on such consent. Doctrine of approbation or reprobation comes in play where the party enters into an agreement of his own free will for disposal of matter except where party denies having given consent, or pleads mistaken view of the situation or alleges to have been otherwise duped or taken in. This doctrine is applicable against party submitting to jurisdiction or to a procedure not specifically provided for in the law governing case. In case of Province of Punjab and another v. Industrial Machine Pool (PLD 1978 Lah. 829) wherein, officers and staff of the petitioner had participated in arbitration proceedings with the, petitioner's authority without raising any objection to the appointment of the arbitrator as being without lawful authority or against the arbitration clause, such objection was not allowed to be raised in revision. In case of Azad J & K Government v. Kh. Muhammad Usman & Co. (PLD 1966 AJK 19) it has been held that objection to the validity of the reference to the arbitration should be made at the time when the award is filed and if the objections are not raised before the arbitrator or the Court concerned, they cannot be allowed to be raised in appeal. In case of Maqboolur Rahman and 2 others v. Muhammad Iqbal Khan and 9 others it has been held that if a case as set up in revision petition is different than the one which was set up before the trial Court the point neither raised before the trial Court nor lower appellate Court cannot be allowed to be raised at the revisional stage.' In case of Mian Bashir Haider v. Mrs. Nur Jehan Kirmani (1984 SCMR 730) it has been held that in case where the High Court on appeal by the tenant remands the case to the Rent Controller with consent of the parties for fresh decision such order cannot be challenged in appeal and was pending on the tenant at all subsequent proceedings. The party inviting the Court to adopt particular procedure or to take particular step in proceedings, legality of such proceedings or step cannot be challenged subsequently. At page 733 of report it has been held as under:‑‑ "There is another aspect of the case which may also be adverted to at this stage. Section 105(2) of the C.P.C. lays down the principle that if an order of remand is not challenged by way of appeal by a party, he shall thereafter be precluded from its correctness. The clear import of the order of High was that the dispute between the petitioner and the present respondent who were the only party to the appeal would be decided afresh by the Rent Controller to whom the case was remanded. It may be recalled that this order of remand was passed with the consent of parties and the petitioner has raised the question about the maintainability of the proceedings which was available to him at that stage. This being a consent order the question of filing of an appeal, therefore, does not arise but by the very fact the order, whether its effect was binding on the petitioner in all subsequent proceedings. It is not necessary to pursue this matter any further as to question whether dispute the unchallenged order of remand, the petitioner was entitled to raise the legal objection as to the maintainability of the proceedings in the remanded proceedings, because there is another principle which seems to have been attracted debarring the petitioner from doing so. It is well‑established that a party who invites the Court to adopt the particular procedure or to take particular step in the proceedings, cannot turn round and question the legality of such procedure or step subsequently. Both in law and on facts, therefore, we are of the opinion, that the petitioner is merely passing a technical objection to the maintainability of the proceedings as for all intents and purposes the proceedings for eviction were at the instance of the respondent:' In case of Muhammad Ijaz and 3 others v. Khurshid Malik and 4 others (1986 CLC 2270) it has been held that if the parties to a suit agree to a particular mode of trial the judgment rendered in that mode shall be a consent decree passed upon compromise and hence not amenable to appeal as per section 96 (3) read with Order XVIII, Rule 18 and Order XXIII, Rule 3, C.P.C. In case of Rehmat etc. v. Resident of Deh etc. (1988 CLC 1922) it has been held that if the decision of the lower Court is based upon consent of the parties, legality thereof cannot be asserted in revisional jurisdiction of the High Court. . In case of Muhammad Itbar Khan v. Fazal Hussain and 3 others (PLD 1990 Lahore 116) it has been held that if the Court has assumed the role of the arbitrator between the parties with their consent its decision will tantamount to a consent judgment and hence is not challengeable in appeal. In case of FJ. Rambarts (Pakistan) Ltd. v. Pakistan Steel Mills Corporation (1987 CLC 2198) it has been held that in case a party to a suit participated in the suit without raising objection to its jurisdiction such party cannot turn back to challenge the jurisdiction. In case of Chief Engineer Building Department Provincial PWD Government of Sindh v. M/s. Pak. National Construction Company (PLD 1981 Karachi 553) it has been held that in case of participation before the arbitrator in his proceedings with full knowledge of all the circumstances in such appointment without any objection or protest, the participant is precluded from objecting to such appointment subsequently as the principle of waiver and estoppel it attracted in circumstances of the case. In case of Abdul Wahab and others v. Habib Ali and others (PLD 1969 Lahore 365) it has been held that if a party obliges the Court by the conduct to adopt a course of trial contrary to Court's practice, it cannot subsequently raise objection to such a course as per principle of estoppel and any challenge to the order passed in pursuance of the aforementioned adopted course will not be permissible under the principles of section 96(3), C.P.C. In case of Mod Lal Banker by L.R. v. Maharaj Kumar Mahmood Hasan Khan (AIR 1968 SC 1087) it has been held that if a judgment‑debtor during the course of execution proceedings agrees to pay higher rate of interest than what is mentioned in the decree, the compromise is enforceable during execution proceedings. A perusal of this judgment clearly shows that it is the final compromise regarding the quantum of payment of interest which has been agreed to be abided by and in this context, it has been held that the compromise can be enforced in execution proceedings. It may be mentioned here that the matter in issue involved in the present case was neither taken note of nor was determined by the Court. In case of Sher Muhammad and another v. Munir Ahmad and 2 others (1978 SCMR 167) where the question raised was as to whether the Deputy Settlement Commissioner who had passed the impugned order whose jurisdiction has been invoked by the petitioner before the Hon'ble Supreme Court, was with or without jurisdiction, Hon'ble Supreme Court has held that the petitioner himself having invoked the jurisdiction of DSC the High Court was justified in not allowing to raise the objection of lack of jurisdiction of this Court. In case of Mst. Shamim Akhtar v. Najma Baqai and 3 others (PLD 1977 SC 644) it has been held that a person participating in proceedings before the umpire during a suit cannot object to the award rendered by the said Umpire.

13. In case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690) it has been held that a pure question of law which does not require investigation into facts can be raised at any stage of the proceedings as it is the duty of the Court itself to apply the correct law and a party is not bound to engage a counsel to assist Court. Whatever law becomes applicable on the admitted or proved facts, it has to be given effect to whether or not it has been relied upon by the party or not. At page 696 of the report it has been held as under: "We find ourselves in agreement, however, with learned counsel for appellant that the points which had been raised as to the effect of minority of the plaintiffs on the validity of the agreement for sale as well as on the question as to whether the agreement would be specifically enforced in a suit by a minor were such that permission to argue them ought to have been granted. They all are as we will presently show pure questions of law and we do not think the proposition is open to contest that pure question of law can be raised at any stage. Learned counsel appearing for the respondents does not accept that the points raised with respect to the minority of the plaintiffs are pure question of law. He has made an effort to justify the judgment of High Court on the ground that the questions raised were mixed questions of law and facts. According to him the High Court never held that pure questions of law would not be raised. A reference, however, to the judgment of the High Court shows that in the opinion of the learned Judges even a pure question of law could not be allowed to be raised in appeal for the first time. The learned Judges say: `to allow the question of law or of fact to be raised in appeal for the first time would clearly prejudice the other party and thus defeat the ends of justice: It may be pointed out that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable on the admitted approved facts law has to be given effect to whether or not it has been relied upon by a party of course we are referring here to proceedings ‑ before original and appellate Courts and not to revisional Courts jurisdiction to interfere is determined by the statute that creates the jurisdiction. Under section 115 of C.P.C. for instance the revisional Court cannot interfere on the sole ground that on the merits the decision was not in accordance with law, though the fact that a statute was overlooked and no decision was given with respect to it may constitute an irregular exercise of jurisdiction." In case of Ramalal Hargopal v. Kisanchandra and others AIR 1924 PC 95 it has been held that an objection to the jurisdiction must be allowed at any stage of the proceedings if the defect is material. At pages 101 and 102 of the report it has been held as under: "The points urged before their Lordships were as follows: (1) The District Judge of Berar had no jurisdiction to deal with the award, this point subdivided into two branches, absence of local territorial jurisdiction sanction by the Commissioner. (2) As supplementary to 1 that no argument to the contrary could be listened to by their Lordships because the points had previously been determined between the parties and were res judicata. (3) That the management of public religious trust could not be referred to arbitration. That the arbitrator had exceeded his powers. (4) That the arbitrator had exceeded his powers.?? (5) That the subsequent variations vitiated the award. It is clear that if the objection that the Court of the District Judge of Berar had no jurisdiction over the subject‑matter of the award, as required by paragraph 20 of the 2nd Schedule of the Code of Civil Procedure is good, no further points can arise. This point was taken on behalf of the present appellant at the outset, but seems never the less never to have been directly insisted upon during the numerous subsequent proceedings. No doubt it was urged that the point must be deemed to have been decided in favour of the appellant in the previous suit. But their Lordships have not been referred to any place in these lengthy proceedings where they might find an argument in favour of the appellant contention, if it were to be decided upon as resintega. It seems to their Lordships that the Judges in the Court of the judicial commissioner never imagined that they had to deal with the point and it is not except in the indirect and derivative way already mentioned, taken in the printed case lodged on behalf of the appellant before this Board. If it was any other point except a point of jurisdiction, their Lordships would pay no attention to it, but they are bound to take notice of any objection to the jurisdiction however late in the day it may be raised, if it be that on the facts admitted or proved it is manifest that there is a defect of jurisdiction and their Lordships find this defect in the present case." In case of Qutab‑ud‑Din v. Farrana Ali (1994 SCMR 107) at page 108 of the report it has been held as under: "An appeal was taken to the District Judge which failed. Finally a revision petition was filed in the High Court wherein for the first time notice was taken of section 144 of the Punjab Tenancy Act enforced from 4th February, 1952. It was found that the occupancy rights in land as such were extinguished and such tenants became owners thereof. The arguments of the appellant that a new ground in a civil revision could not be made out without proper notice to the other party was dealt with as hereunder:‑‑ Learned counsel for respondent further submitted that at no stage it was urged that Muhammad Hussain vendor had become owner of the land by operation of law. I am afraid the argument is not tenable inasmuch as it is the duty of the Court to apply the law which becomes available to the facts proved on the record. I derive support for this view from judgment reported as Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690). The learned counsel for the appellant Ch. Shaukat Ali Saqib has reiterated the contention that an altogether new point even of law could not be made the basis for decision. He has then proceeded to demonstrate from the record that the occupancy tenant could not have become the owner because he was liable to pay Batai to the extent of half and in that context the pre‑emption decree should have extended to 1/2 and not more. So far as the first contention is concerned we find that the Court was as has been observed by the High Court under a duty to show awareness of the law of the land and to apply it irrespective whether the parties and their counsel invoked it or not. The duty of the Judge in such a situation has been indicated in Muhammad Sarwar v. The State (PLD 1969 SC 278) in the following words at page 292:‑‑ "It appears that the learned Judges were not properly advised but it falls to be said that there is a well‑known adage that a Judge must wear all the laws of the country on the sleeve of his robe." In case of Vasireddi Srimanthu and others v. Devanhaktuni Venkatappayya and another (AIR (34) 1947 Madras 347) it has been held that when a Court has no jurisdiction to try a cause, no agreement or act of the party can confer jurisdiction which it does not possess, therefore, in a case where a decree was transferred for execution to a Court which had ceased to have territorial jurisdiction over the property in question during the pendency of the execution petition and the property was sold by that Court without any objection by judgment‑debtor, the auction‑purchaser gets no title in the property and the judgment‑debtor who seeks to execute decree against the same property is not precluded from asserting the want of jurisdiction of the transferee Court to sell the property. In case of Bahadur v. Mirza Abdul Qayyum and another (PLD 1969 Lah. 636) that right of appeal is creature of statute and is competent only if statute so provides, if appeal is filed and entertained without jurisdiction, mere fact that no objection as to jurisdiction was raised would not confer jurisdiction where it does not exist. In case of Zabtey Khan v. The State (PLD 1972 Lahore 196) it has been held that even if an objection to the jurisdiction is not raised at the trial stage it can be raised in appeal in case the impugned order is without jurisdiction because the lack of jurisdiction vitiates whole proceedings for which there is no cure and even consent of the parties cannot confer jurisdiction on the Court having none. In paragraph No. 7 of the report it has been held as under:‑‑ "The learned counsel for the State referred to section 537 of the Criminal Procedure Code and said that this objection had not been taken at the trial and, therefore, could not be taken in appeal. I do not agree with this. This question of prejudice as contemplated by section 537, Cr.P.C. is quite apart from the question of jurisdiction. Where there is a complete lack of jurisdiction the whole proceedings are vitiated and there is no cure for them. Even the consent of a particular person will not confer jurisdiction on the Court which has none. This was so held in Mailvi Asir‑ud‑Din Ch. v. The Crown." In case of Central Cooperative Bank Ltd., Barh v. Dasrath Pandey (AIR 1940 Patna 406) it has been held that jurisdiction cannot be conferred upon the Court by consent or by waiver and it being a question of law can be raised even in the subsequent proceedings. At page 408 of the report it has been held as under:‑ "It is clear that jurisdiction cannot be conferred by consent or waiver. When a Judge has no inherent jurisdiction over the subject‑matter to the suit the parties cannot by their mutual consent, convert it into a proper judicial process; but when it a cause which the Judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendants cannot subsequently dispute his jurisdiction upon the ground that there were irregularities in the initial procedure which if objected to at the time would have led to the dismissal of the suit:" In case of M/s. Faridson Ltd. v. M/s. S.M. Fazail & Company (PLD 1954 Sindh 247) it has been held that consent of the parties will not confer jurisdiction upon the arbitrator. At page 254 of the report it has been held as under: "It was also contended by Mr. Ibadat Yar Khan that consent cannot give jurisdiction to the arbitrators. He has relied in support of his contention on the observation of Bachal, J. in Munawar & Co. v. SA. Rauf & Co. (i) `an appearance before a,, arbitrator whose appointment is without jurisdiction and ultra fires, even though it is not made under protest, does not amount to a waiver of the right of a party to consent that the arbitrator has no jurisdiction to act." In case of M/s. Munawar & Co. v. M/s. SA. R4J & Co. (PLD 1954 Sindh 30) at page 32 of the report it has been held as under: In J.G. Smith and others v. Ludha Ghella Damodar (1), the arbitrators, who were authorised to appoint an umpire having disagreed, referred the case to the Bombay Chamber of Commerce for the appointment of an Umpire. The Chamber of Commerce appointed an Umpire who made the award and it was held that the appointment of the Umpire was invalid as the arbitrators could not delegate the power of appointment conferred on them by the contract. In Gungheim Hopkins and Co. v. Foukel Manb (2) it was held that as the arbitrator were not qualified to act as arbitrator under the contract, the award was null and void as having been made without jurisdiction though the parties had appeared before the arbitrator. In Re: Greenwood (3) the arbitrators chose an Umpire by lot, and informed the parties that they had mutually chosen A, B as Umpire. The parties assented. It was held that this assent not shown to have been given with knowledge of the facts did not waiver the irregularity. In Hodson v. Drewry (4) an Umpire was appointed by lot and the parties afterward attended the reference but in ignorance of the matter of appointment. It was held that this did not amount to a waiver or the irregularity. There can be no waiver without knowledge of the material facts. The defendants did not know that the Umpire was not a Member of the Karachi Cotton Association. An appearance before an Arbitrator whose appointment is without jurisdiction and ultra vires, even though it is not made, under protest does not amount to a waiver of the right of a party to consent that the arbitrator has no jurisdiction to act." To the same effect is the law declared in case of Muhammad Ashraf and 14 others v. Ziarat Gul (PLD 1994 Peshawar 48), wherein it .has been held that, a decree without jurisdiction cannot be passed even by compromise. In case of Mirza Abdul Hamid and another v. The Custodian of Evacuee Property and another (PLD 1969 Lahore 404) it has been held that a concession by a counsel on the point of law is not binding on the client and the case should be decided by the Court according to the proper and relevant law on the subject.

14. In case of M/s. Malik Muhammad Azeem and Bros. v. Pakistan, through Secretary Pakistan P.W.D., Islamabad and another (PLD 1993 Quetta 99) it has been held that although an award can be set aside on the grounds enumerated in Section 30 of the Arbitration Act but when the award is product of an illegal action after the stay of proceedings by Court, it can be set aside without hearing to provisions of section 30 of the Act as being void and illegal, and while exercising revisional jurisdiction, irregularities and illegalities cannot be allowed to go unnoticed particularly in view of fact that arbitrator had anxiety to give award despite stay order. The award so was held to be given without a lawful authority and without jurisdiction, hence, the same was set aside.

15. In case of M/s. Ghulam Farid, Muhammad Latif and others v. The Central Bank of India Ltd., Lahore (PLD 1954 Lah. 575) it has been held that in case where substantial justice has done it is not always necessary to interfere in revision. In case of Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others (PLD 1970 Lahore 412) it has been held that the Court is not bound to interfere in revision even if order of Court below is wrong if the substantial justice has otherwise been done. Same are the observations in case of Mst. Fazal Begum v. Bahadur Khan (PLD 1983 Lah. 365). Following are the legal principles .which have been laid down in the aforementioned cases:‑‑ (1)Executing Court while executing the decree has no jurisdiction to refer the dispute raised during the execution proceedings to an A Arbitrator. (2). Appointment of an Arbitrator by executing Court by consent of the parties, shall be deemed to be a reference without intervention of the Court and award rendered by the said Arbitrator shall be governed by the provisions of section 47 of Arbitration Act. According to which 8 provisions if the parties referring the dispute to Arbitrator do not accept the award after the same is rendered and filed in Court, it shall be of no legal value and it cannot be made as a rule of the Court. If, however, consent is given it can be acted upon as a compromise or adjustment of the dispute outside the Court and can be acted upon as such. (3) Parties to a lis can agree to adopt any mode of trial of their. dispute even during the course of execution proceedings and in case they participate in the said proceedings till the ultimate order is passed, C they shall be estopped from challenging the adoption of said mode including the appointment of arbitrator as well as legality of the proceedings taken by the Court/person in pursuance of the said mode on the principle of waiver and acquiscence. However, cases of orders/awards being coram non judice are exceptions to the above rule. (4) That the parties to lis cannot confer upon the Court/authority/person D jurisdiction even by their consent which otherwise is inherently lacking. ? (5) Question of law determination whereof is not dependent upon inquiry and investigation of facts can be allowed to be raised at any stage of E the proceedings even if it has not been raised before the lower forums. (6) It is the duty of the Court before whom a lis brought to decide the same in accordance with law and apply the same correctly, even the F question of law applicable to the case is not even raised by a party to the lis. ? (7) An executing Court has no jurisdiction to go beyond the decree in execution proceedings. However, during the course of execution proceedings the Executing Court which had passed the decree can rectify the decree to the extent of accidental errors and omissions and G also to correct tenor of the same if it has not been drawn in accordance with the decision in the case. It can also refuse to entertain and execute the decree, if it is patently without jurisdiction. (8) In case where substantial justice has been done, it is not necessary to interfere in revision on the basis of technicalities alone. (9) The person who himself invokes jurisdiction of a Court or an authority and participates in the proceedings before the said forum/authority he cannot be subsequently allowed to approbate and reprobate and to I challenge the competency of proceedings before the said forum and to have jurisdiction to pass an order in the case as he cannot be heard in support of this contention on the principles of estoppel and acquiescence.

16. I have considered the arguments addressed by the counsel for the parties, have gone through the record and have examined the case in the light of the provisions on the subject and the case‑law referred to above as per legal principles laid down therein which have been enumerated above.

17. In the case in hand admittedly a decree has been passed in the suit which had become final. In the said decree parties to the suit have been allocated various specific properties or portion thereof. During the course of execution proceedings of the said decree some of the decree‑holders filed objections in relation to the executability of the final decree. These objections were contested and were being adjudicated upon, the parties agreed to refer their dispute to a sole arbitrator. This reference by the learned executing Court being beyond the jurisdiction of the said Court shall be deemed to be a reference without intervention of the Court. The parties including the petitioner participated in the proceedings before the sole arbitrator who rendered award on the basis whereof material changes/variations have been made in final decree passed in the main suit and resultantly the property allocated to the petitioner in the final decree stands changed. Learned trial Court has rejected the objections on the ground that misconduct is not established on record. This order has been affirmed in appeal. Neither the learned trial Court nor the learned first appellate Court has determined the real matter in issue involved in the case i.e. whether award rendered by the arbitrator not accepted by all the parties can be made as a rule of the Court as per provision of section 47 of the Arbitration Act? As the arbitrator in this case shall be deemed to have been appointed without intervention of the Court, award in question could only have been acted upon, if the referring parties had consented thereto after the same was rendered and filed in the Court. Consequently as the award had not been accepted by all the parties to the suit including the petitioner, it could not have been made as a rule of the Court as the same does not amount to adjustment or the settlement of the dispute outside the Court in terms of Order XXIII, rule 3, C.P.C.

18. Award in question has materially varied the final decree passed in the ?suit to prejudice of the petitioner, the learned executing Court had no jurisdiction to go beyond the decree by variation thereof in accord with the disputed award. On this account as well the award being of no legal consequence could not have been acted upon and made as rule of the Court. The learned executing Court had exceeded its jurisdiction by superseding the final decree passed in the main suit which jurisdiction does not vest in the executing Court. All the abovementioned legal principles have not been adverted to by both the Courts below while making the award as rule of the Court passing a decree in accord therewith. Consequently the impugned orders passed by both the Courts below are patently illegal,, and without a lawful authority and hence are liable to be interfered with in exercise of revisional jurisdiction of this Court.

19. As‑ regards the arguments of the learned counsel for the respondent to the effect that the objections of jurisdiction having not been raised by the petitioner before the learned executing Court or before the learned first appellate Court, cannot be allowed to be raised before this Court, suffice it to say that the objections raised by the' learned counsel for the petitioner are purely legal in nature and being questions of jurisdiction going to the root of the case can be allowed to be raised before this Court. Even otherwise the impugned order of making an award as a rule of the Court preparation of decree in terms thereof and subsequent ‑ order of dismissal of the objection petition affirmed in appeal being patently illegal and without a lawful authority, it is the duty of this Court to apply the correct law and decide the issue involved in the case and to set aside award. The order of making the same as rule of the Court and passing of decree in accord therewith as being illegal and without lawful authority as per law declared in case Malik Muhammad Azeem and Bros. v. Pakistan through Secretary Pakistan P.W.D., Islamabad and another (PLD 1993 Quetta 99). Although there is no cavil with the proposition that litigant who opts to get his dispute decided in a particular mode and participate in the proceedings before the person/authority appointed to decide the dispute in pursuance of the said mode is estopped to challenge the legality of appointment and the proceedings conducted by the said authority yet as in this case the appointment of arbitrator by the executing Court amounts to reference to the Arbitrator without intervention of the Court and the award having not been consented to after the same was rendered and filed in the Court is of no value hence, final result will not be materially changed.

20. Argument of the learned counsel for the respondents to the effect that since this litigation is continuing since 1962 and has not been finalised8 so far, hence, substantial justice having been done, no interference is called for in exercise of revisional jurisdiction of this Court, is also misconceived. Revision petition is not a concession but is to be filed as of right, as held in case of Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 SC 139) and has to be decided in accordance with the correct law applicable to the facts of the case. Cases referred to above herein substantial justice having been done was held to be a ground for refusal to interfere in revision are those where justice has been done to all the parties to the lis and not a decision which is patently illegal and is prejudicial to the interest of one of the party to the litigation. Consequently, the case of M/s. Ghulam Farid and Muhammad Latif etc. (PLD 1954 Lahore 575), Mst. Ghulam Sakina and 6 others (PLD 1970 Lahore 412) and Mst. Fazal Begum" (PLD 1983 Lahore 365), referred to (supra), being distinguishable on facts, the law declared therein is not attracted to. the facts of the case in hand and as such it cannot be said that merely because litigation is pending since long will not be a bar even on the principle of propriety to exercise revisional jurisdiction of this Court to strike down the impugned orders. In view of above discussion I am of the view that the impugned order of making the award as a rule of the Court and preparation of decree in accordance therewith as well as the orders of dismissal of objection petitions filed by the petitioner by the two Courts below are illegal and are liable to be set aside and the matter is liable to be remanded to the learned executing Court for decision of the execution petition in accordance with the law.

21. Resultantly, I accept this civil revision, set aside the impugned orders and hence, award as well as the impugned order passed by the learned trial Court making it as a rule of the Court, the decree passed in pursuance thereof and the order of dismissal of .the objection petition filed by the petitioner affirmed in appeal and remand the case to the learned lower executing Court for decision of the execution petition as well as the objections filed there against, expeditiously preferably on or before 30‑6‑1994, strictly in accordance with law. In view of difficult legal question involved in this case the parties are left to bear their own costs. AA/H‑616/L????????????????????????????????????????????????? ??????????????????????????????????Case remanded.