[This appeal first came on for hearing on 7th November, 1927 before their Lordships Ramesam and Jackson, JJ.]

This is an appeal against the order of the Subordinate Judge of Narasapur, refusing to pass a decree in terms of an award. The petition was filed by the defendant under O. 23, R. 3, of the Civil Procedure Code. The Subordinate Judge observes:

There is no written order of reference to arbitration. Parties made no reference through Court. Petition is dismissed.

The order of the Subordinate Judge shows that he thought that a decree in terms of an award could be passed only if a reference is made through Court. It is not the defendants case that there was a reference through Court. His case is that there was a reference without the intervention of the Court and an award was passed and that a decree can be passed on such an award under O. 23, R. 3. The respondent denies such a reference but the matter was not enquired into by the Subordinate Judge. The petitioner in the lower Court is the appellant before us and he asks that the matter may be enquired into, that is, whether a reference was, as a matter of fact, made.

The learned vakil for the respondent argues that O. 23, R. 3 should not be applied to a case like this where a reference is made to arbitrators and an award is passed without the intervention of the Court. There is great conflict of opinion on this question in all the Indian Courts. The latest decision of this Court is in Nune Ayyannamma v. Valloon Ramaswami (26 L.W., 231) where it was held that O. 23, R. 3, applies following earlier decisions of this Court. The earliest decision of this Court, Lakshmana Chetti v. Chinnathambi Chetti (I.L.R., 24 Mad., 326) was prior to 1908 but all the other decisions are on the new Code, some of these can be distinguished on the ground that the parties have accepted the award and therefore they were acting practically on the footing of a compromise, but others cannot be distinguished on this ground. In Bodachari v. Muniyachari (14 L.W., 666) the award dealt with matters which were the subject-matter of a pending suit and other matters which were not the subject-matter of the suit. That decision may be distinguished on the ground of this difference in the facts but it must be noted that the learned Judges who decided the case, Krishnan and Odgers, JJ., were inclined to follow the decision in Shavak Shaw v. Tyab Haji Ayub (I.L.R., 40 Bom., 386) [LQ/BomHC/1916/3] to be presently referred to. It was also conceded in Nune Ayyannamma v. Valloori Ramaswami (26 L.W., 231) that there is great force in the argument based on Sect. 89 of the Civil Procedure Code.

Coming now to the Bombay High Court Macleod, C. J., originally held in Shavak Shaw v. Tyab Haji Ayub (I.L.R., 40 Bom., 386) [LQ/BomHC/1916/3] that O. 23 R. 3 would not apply to a case of this kind but he departed from this view in Manilal Motilal v. Gokaldas Rowji (I.L.R. 45 Bom., 245). The matter came before a Full Bench in Chanbasappa v. Basalingayya (I.L.R., 51 Bom., 908 [LQ/BomHC/1927/78] (F.B.)), Marten, C. J., in his final judgment relies on the definition of the term compromise given in Murrays Dictionary as including a reference to arbitrators, but as observed by my learned brother in the course of the arguments, even then, the term compromise may not apply to the actual award in which it ends. In the Allahabad High Court, the matter went up to a Full Bench in Gajendra Singh v. Durga Kunwar (I.L.R., 47 All., 637 (F.B.)) and it was held that O. 23, R. 3 applies but in a later decision of the same Court in Baij Nath Prasad v. Narain Prasad (102 I.C., 608). a Bench of two Judges, Mukerji and Boys, JJ., held that O. 23, R. 3 did not apply on the facts of that case. The same view was taken in Lahore, the latest decision being Hari Pershad v. Soogni Devi (3 Lah. L.J., 162). In Calcutta, the latest decision is Amar Chand Chamaria v. Banwari Lall Rakshit (I.L.R., 49 Cal., 608) [LQ/CalHC/1921/343] where Rankin, J., takes the same view as in Shavak Shaw v. Tyab Haji Ayub (I.L.R., 40 Bom., 386) [LQ/BomHC/1916/3] following an earlier decision of his.

In these circumstances, it seems to be desirable that the matter should be referred to a Full Bench. We observe that there is great force in the argument based on Sect. 89 of the Civil Procedure Code. There is no doubt that it is the intention of the legislature that, in all cases of arbitration and awards, the procedure in Sch. II should be observed. The only difficulty arises on account of the fact that Sub-Cl. (2) of Cl. 20 of the second schedule contemplates that the application to file the award should be registered as a suit. Where there is already a pending suit, this means that there will be two parallel suits covering the same matter. Obviously, it is inconvenience of this kind that has induced Judges to apply O. 23, R. 3 in cases where there is a reference to arbitration and an award is made without the intervention of the Court, where a suit is pending. This difficulty can no doubt be met by suitably amending Sub-Cl. (2) of Cl. 20 of Sch. II, but until such an amendment is made, to apply O. 23, R. 3 seems to be going in contravention of the provisions of Sect. 89, Civil Procedure Code.

We refer the following question to a Full Bench:

Where in a suit parties have referred their difference to arbitration without an order of the Court and an award is made, can a decree in terms of the award be passed by the Court under O. 23, R. 3, or otherwise, the parties not accepting the award

Phillips, J.

[1] The question referred to us for decision is Where in a suit parties have referred their difference to arbitration without an order of the Court and an award is made, can a decree in terms of the award be passed by the Court under Order 23, Rule 3, or otherwise, the parties not accepting the award

[2] This question has frequently come up for decision in this Court and has almost invariably been answered in the affirmative.

[3] In Nanjappa v. Nanjappa Rao it was held that an award in such circumstances was a lawful agreement, compromise and adjustment within the meaning of Section 375 of the Civil Procedure Code, 1882, which is the section corresponding to Order 23, Rule 3. In that case the previous decisions of this Court were referred to and followed. The subsequent cases in which the decision was under the Code of 1908 have held that Order 23, Rule 3 can be applied in. such circumstances. Chinna Venkatasami Naicken v. Venkatasami Naicken (1919) I.L.R. 42 M. 625 : 36 M.L.J. 291, Belagoduhal Virabadra Gowd v. Kalyani Gangamma (1926) 97 I.C. 465, Alagu Pillai v. Mayilappa Pillai ,, Chintalapalli Chinna Dorayya v. Chintalapalli Venkanna (1923) 76 I.C. 502 and Ayyannamma v. Ramaswami .

[4] The only cases in which a different opinion has been expressed are Venkatachala v. Rangiah (1911) I.L.R. 36 M. 353 : 21 M.L.J. 990 and Bodachari v. Muniyachari (1921) 14 L.W. 66

6. In the former case there was a mere agreement to refer but no award in pursuance of that agreement, and it was held that that was not an adjustment within the meaning of the Code. In the latter case, Krishnan and Odgers, JJ., were inclined to hold that Section 89 of the Civil Procedure Code was a bar to the application of Order 23, Rule 3 in such cases, but did not definitely decide the point. It will be seen, therefore, that so far as this Court is concerned the view taken almost unanimously has been that Order 23, Rule 3 is applicable in such circumstances; but this reference has been made because the Calcutta High Court and the Lahore High Court have held to the contrary. In Calcutta the leading case is Amar Chand Chamaria v. Banwari Lall Rakshit (1921) I.L.R. 49 C. 608, a, decision of Rankin, J., sitting as a single Judge, in which he followed an earlier decision of his own. This was followed by a Bench in Guimoni Dasi v. Tarini Char an Porel (1927) 104 I.C. 360. The Lahore High Court took the same view in Hari Prasad v. Soognidevi (1921) 3 Lah. L.J. 162 and based their decision on the provisions of Section 89 of the Civil Procedure Code. In Bombay Macleod, C.J., agreed with the Calcutta view in Shavakshaw v. Tyab Haji Aynb (1916) I.L.R. 40 B. 386 but in a subsequent case, Manilal Motilal v. Gokal Das Rowji (1920) I.L.R. 45 B. 245, he came to the opposite conclusion. The question was referred to a Full Bench and in Chanbasappa v. Baslingayya (1927) I.L.R. 51 B. 908 : 29 Bom. L.R. 1254 (F.B.) it was held that Order 23, Rule 3 was applicable. The Allahabad High Court (Full Bench) have taken the same view in Gajendra Singh v. Durga Kunwar (1925) I.L.R. 47 A. 637 (F.B.) although in a subsequent case, Baij Nath Prasad v. Narain Prasad (1927) 102 I.C. 608, a Bench of two Judges held that Order 23 did not apply in the particular case they were considering which was a case where the requirements of Clause 20, Schedule II, Civil Procedure Code, had been complied with, and it was held that the award should be treated as an award and not as a compromise of the suit. The main body of opinion is therefore clearly in favour of an affirmative answer to the question before us, but it will be advisable to consider the matter in its legal aspects.

[5] In the first place, is Order 23, Rule 3 in terms applicable to the case before us Rule 3 provides:

Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise....

[6] If an agreement to abide by the decision of an arbitrator can be held to be a compromise, the section is clearly applicable. It has been suggested that a mere agreement to be bound by a future award is not a compromise, whereas an agreement to accept an award that has been made is a compromise. It is difficult to see on what principle parties who agree to accept a certain fixed sum in satisfaction of a claim can be said to compromise that claim, whereas if they agree to accept a sum which is to be fixed by some one else, that does not amount to a compromise. The meaning of the word "compromise" has been elaborately discussed by Martin, C.J., in Chanbasappa v. Baslingayya (1927) I.L.R. 51 B. 908 : 29 Bom. L.R. 1254 (F.B.) and, with respect, I entirely agree with him that the agreement to abide by the decision of an arbitrator is a compromise of the claim.

[7] The main objection that has been taken to the application of Order 23, Rule 3 is that it is opposed to Section 89 of the Civil Procedure Code. That section runs as follows:

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 references to arbitration whether by an order in a suit or otherwise, and all proceedings thereunder, shall be governed by the provisions contained in the second schedule.

[8] Two arguments are advanced in support of this proposition, firstly, that the words "any other law for the time being in force "cannot include Order 23 which finds a place in the Schedule to the Civil Procedure Code itself, and secondly, that Section 89 is exhaustive and provides that all references to arbitration shall be governed by the second schedule of the Code. The first argument does not appeal to me, for if the whole of the provisions of the Civil Procedure Code are excluded by the words "any other law for the time being in force" it would mean that the provisions of the second schedule were exhaustive and self-contained, and the various rules of procedure laid down in the other parts of the Code would be inapplicable. The words "any other law" are very general and there seems to be no reason for interpreting them as excluding the law laid down in other parts of the Civil Procedure Code. The second argument that Section 89 makes the second schedule exhaustive and therefore excludes the provision of Order 23 in cases of award has more force. If an award comes within the meaning of compromise in Rule 3, as I have found that it does, a certain right is conferred on parties by that section and that right cannot be taken away except by a specific enactment. Unless it is necessary to read Section 89 as having that effect, it should not be so read. In the first place, the second schedule, Civil Procedure Code, is not mandatory, but provides for reference to arbitrators at the will of the parties and also provides that certain procedure must be followed if they take action under this schedule. It does not, however, say that there shall be no arbitration other than what is dealt with by the second schedule, and if parties to the suit choose to refer to arbitration, it is open to them to adopt the provisions of the second schedule or not as they please. In the present case the parties have agreed to decide a pending litigation in accordance with the award of an arbitrator. Under Clause 20 of the second schedule they could apply to have the award filed in Court and then the procedure provided by that clause would be followed. If, however, the award satisfies the provisions of Order 23, Rule 3, there is no provision in the Civil Procedure Code which expressly takes away the right of the parties to proceed in accordance with the section; and unless that right is clearly taken away by law, it must be enforceable in Court, and certainly there is no express provision of law which takes away such right, nor any provision which necessarily has that implication. I am, therefore, of opinion that Order 23, Rule 3 can be applied in the circumstances of the present case, although I am not prepared to hold that in appropriate circumstances the parties would be precluded from taking action under Clause 20 of the second schedule.

[9] Another argument has been adduced by Mr. T.M. Krishnaswami Aiyar for the respondent, namely, that when parties engage in litigation and give the Court jurisdiction to decide their dispute, it is not open to oust that jurisdiction by an agreement among themselves; and reliance is placed on Doleman and Sons v. Ossett Corporation (1912) 3 K.B. 257 which was followed in Ram Prosad Surajmull v. Mohan Lal Lachminarain (1920) I.L.R. 47 C. 752 and Appavu v. Seeni (1916) I.L.R. 41 M. 115 : 33 M.L.J. 177. That case is not, however, at all applicable to the present question, for there it was held that, when there was, what is called an arbitration clause in an agreement and in contravention of that clause a suit had been filed, it was not open to plead an award given after suit as a bar to the action. There, however, the agreement to submit the disputes for arbitration was made before the suit was filed and on this ground the case is distinguishable. Fletcher Moulton, L. J., observed at page 269:

It follows, therefore, that in the latter case the private tribunal, if it has ever come into existence, is functus officio unless the parties agree de novo that the dispute shall be tried by arbitration as in the case where they agree that the action itself shall be referred.

[10] Farwell, L.J., also observed at page 274:

When the defendant has submitted to the jurisdiction, he cannot withdraw without the leave of the Court, or the consent of his opponent.

[11] From these observations it is clear that the learned Judges distinguished the case they were considering from one in which the parties make a reference to arbitration after the suit had been filed and that the latter was not governed by their decision. I am, therefore, of opinion that the question referred to us must be answered in the affirmative.

Ramesam, J.

[12] I agree.

Madhavan Nair, J.

[13] I agree.