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First Appeal No. 28 of 1953, decided on 21st June, 1954 from the Order passed by Ata Ullah Qureshi, Senior Civil Judge, Lahore, on the 20th May, 1953.

(a) Civil Procedure Code (V of 1908)

O. XLI, r. 5 Stay order by High Court‑Proceedings of Court of first instance after order entirely without jur2sdiction‑High Court has inherent jurisdiction to deprive lower Court of jurisdiction to hear case when appeals or revision petitions are preferred to Where the ex parte decree as well as the order dismissing objections against award in default were passed after the High Court had passed an order staying further proceedings in the case:

Held, that proceedings taken by the lower Court after the High Court order were entirely without jurisdiction.

The High Court has inherent jurisdiction, in cases where appeals and revisions are preferred to it, to deprive the lower Court of jurisdiction to hear the case.

Karam Ali and others v. Raja and others P L D 1949 Lah. 100 re .

(b) Award

‑Application for setting aside dismissed in default, and decree ex parte in accordance with award passed on the same day‑Application for restoration of application dismissed in default competent without applying for setting aside ex parte decree.

It is not correct to say that the absence of an application to set aside an ex parte decree is a bar to hearing the application for restoration of objections to an award. A right to impeach a particular order cannot be affected by the fact that on the basis of that order another order which automatically follows the first order has been passed. A reference to the provisions of the Arbitration Act itself will make this matter clear, though the principle is one of general application. Section 39 of the Arbitration Act allows appeals to be filed in cases where the Court refuses to set aside the award. It is obvious that the moment the Court refuses to set aside the award, a decree is passed under section 17 of the Arbitration Act on the basis of the award. A right of appeal exists only against the order refusing to set aside the award and no appeal lies against the decree. If the existence of the decree were a bar to the hearing of an appeal against the order refusing to set aside the award no such appeal could succeed. If the appeal against the order refusing to set aside the order is accepted the decree automatically falls. There is no need to attack the decree itself.

If the order is set aside the decree which is based on it would be automatically vacated.

Sh. Chiragh Din, for Appellant.

Ghulam Abbas Jafri, for Respondents.

B. Z. KAIKAUS, J.‑

Sayyad Muhammad Said and Sayyad Muhammad Sadiq respondents filed an application against the appellant before the Senior Sub‑Judge, Lahore, on the 5th June, 1950, praying that an award delivered by Maulvi Siraj‑ud‑Din Advocate on the basis of an arbitration agree ment between the appellant and respondents be filed in Court. Nazir Ahmad appellant having been served with a notice submitted a written statement objecting to the award being filed and at the same time put in a separate application praying that the award be set aside. This application was treated as a part of the same proceedings. The Court framed issues that arose out of the pleadings of the parties on the 28th of November, 1951. Nazir Ahmad appellant put in an application for the striking of further issues. This application was accepted in pact and some of the issues mentioned therein were framed. Nazir Ahmad appellant applied to the High Court in revision on the 28th of June, 1951, against the' order refusing to frame the remaining issues mentioned in the application. On the 11th of July, 1951, the High Court passed an order staying further proceedings in the case. Before the Senior Civil Judge the next date fixed in the case was the 6th of August, 1951. On that date the respondents put in appearance but the appellant was absent. The stay order issued by the High Court was not brought to the notice of the learned Senior Sub‑Judge. As a result the application of the appellant for getting the award set aside was dismissed in default and a decree was passed in terms of the award. As I find now on enquiry the stay order had actually reached the Senior Sub‑Judge's Court on the 13th of July, 1951, but the Ahmad had either negligently or deliberately not brought it to the notice of the Court. On the 23rd of August, 1951, the appellant put in an application before the Senior Sub‑Judge under Order IX rule 8 and section 151 C. P. C., praying that the dismissal for default of his application against the award be set aside and the case heard on merits. No application to set aside the ex parte decree was put in at this stage. The proceedings hanged on for a long time on account of non‑receipt of the file from the High Court. On the 9th of August, 1952, the appellant put in an application for setting aside the ex parte decree which had been passed on the 6th of August, 1951. The learned Senior Sub‑Judge has dismissed both the applications by an order dated the 20th of May, 1953, and Nazir Ahmad has filed the present appeal against this order.

The learned Senior Civil Judge has held that the appli cation for restoration of the application impeaching the award is incompetent because there had already been passed an ex parte decree and unless and until that ex parse decree was set aside the application for restoration could not be heard. He is of the opinion that ordinarily the objections to the award could be restored by means of an application under Order IX rule 8 for they had been dismissed in default but that the passing of the ex parte decree operated as a bar to the hearing of the application. So far as the application for setting aside the ex parte decree is concerned, he has dismissed it on two grounds. The first is that there is no sufficient cause for setting aside the ex parte decree. He does not say that the existence of the stay order was not sufficient cause but disregards that fact because in his application for setting aside the ex parte decree the appellant made no reference‑to the stay order by the High Court and had relied simply on the plea that no decree could be passed until the objections to the award had been decided. The second ground on which the learned Senior Civil judge had dismissed the application is that of limitation. The application had been filed long after one month.

It is a matter of some surprise that the question of validity of the proceedings before the Senior Civil Judge after the stay order by the High Court finds no place in the judgment. The point was obviously not urged by the appellant and was not taken up suo motu by the learner'. Senior Civil Judge. It is, however, sufficient to dispose of the present appeal. The ex parte decree as well as the order dismissing the objections in default were passed on the 6th.A of August, 1952, i.e., after the High Court had passed and order staying further proceedings in the case. There' can be no doubt that any proceedings taken by the learned Senior Civil Judge after the High C our‑ order were entirely without jurisdiction, With respect to the competence of a Court to proceed with execution after an order staying execution is passed there is a Full Bench judgment of this Court reported as Karam Ali and others v. Raja and others (P L D1949‑Lah.100) It was held in that case that are order staying execution operates from the time it is passed and not from the time when it is communicated to the 'executing Court and that any proceeding taken by the executing Court after passing of the order are null and void. The decision in that case was based partly on the wordings of Order XLI rule 5 C. P. C. and partly on the principle that ‑while an injunction or a prohibitory order takes its effect from the time when it is communicated, a stay order or for the matter of that any other order, takes effect from the moment it is passed. The principle accepted, in that judgment applies to the present case. The order Staying proceedings in this case would take effect as soon as it was passed. It is not necessary for me to refer to authorities in support of the proposition. I am putting forward. The matter has been fully discussed in the judgment mentioned above and in fact it appears to me that there is a simple way of looking at the matter. One has only to answer the question : Had the High Court jurisdiction to take away by its order the jurisdiction of the lower Court in respect of the proceedings Such a power would not be simply a power to forbid by injunction the taking of further Proceedings. It is a power of an entirely different kind, a power to deprive proceedings of their validity. It; is a power to remove a cause from the jurisdiction of a Court. If the answer to the question be, as it ought to be, in the affirmative there can be no doubt that the intention in passing the" order was, to take away jurisdiction from the moment the order was passed. I .am of the opinion that the High Court would have inherent jurisdiction, in cases where appeals and revisions are preferred to it, to deprive the lower Court of jurisdiction, to hear the case. I hold, therefore, hat the proceedings taken by the learned Senior Civil Judge after the passing of the order were without jurisdiction and the case has to be tried de novo from the stage at which it was on the 11th of July, 1951.

Even if I were not to decide this case on the question of jurisdiction of the trial Court to hear the case any further, "he decision of this case would still be in‑ favour of the appellant. The reason given by the learned Senior Civil judge for dismissing the application for restoration is hardly tenable. He has not dismissed the application on its merits for there is obviously sufficient clause for the .appellant not appearing on the date fixed. The appellant was under the impression that the case having been stayed there was no need to appear. The learned Senior Civil judge has dismissed it on the sole ground that the application is of no avail because there is an ex parte decree, the application to set aside which he is dismissing. The learned Judge conceded that had it not been for the ex parte decree the application under Order IX rule 8 would lie for the objections' had been dismissed in default. It may be explained here that although the application for setting aside the award was being dealt with in the same file as the application for filing the award, it was, and was treated to be by all concerned, a distinct proceeding. I have already explained that while the appellant filed a written statement objecting the filing of the award he put in a separate application for having the award set aside. Under section 33 of the Arbitration Act, any party to an agreement or award can apply to have it set aside and the application of the appellant has to be regarded as one under that section. The appellant had applied under Order IX rule 8 and section 151, C. P. C., for the restoration of his application. The respondent bad in reply stated that the objections had been properly dismissed in default. There was no objection by the respon dents that the objections were not a separate proceeding and no application lay. In fact this application hanged on for about a year before the application to set aside the ex parte decree was submitted. The learned Senior Civil Judge himself regards the proceedings as distinct when he concedes that an objection had been dismissed for default, an application under Order IX rule 8 did lie. It is to be observed that so far the objections are concerned the application has to be under Order IX rule 8 whereas with respect to the ex parte decree it has to be under Order IX rule 13 C. P. C.

It is not correct to say that the absence of an application to set aside an ex parte decree is a bar to hearing the application for restoration of objections. A right to impeach a particular order cannot be affected by the fact that on the basis of that order another order which automatically follows the first order has been passed. A reference to the provisions of the Arbitration Act itself will make this matter clear, though the principle is one of general application. Section 39 of the Arbitration Act allows appeals to be filed in cases where the Court refuses to set aside the award. It is obvious that the moment the Court refuses to set aside the award, a decree is passed under section 17 of the Arbitration Act on the basis of the award. A right of appeal exists only against the order refusing to set aside the award and no appeal lies against the decree. If the existence of the decree were a bar to the hearing of an appeal against the order refusing to set aside the award no such appeal could succeed. If the appeal against the order refusing to set aside the order is accepted the decree automatically fails. There is no need to attack the decree itself. Similarly when an order recording a compromise is passed an appeal lies against that order and the competency of the appeal is not at all affected by the fact that on the basis of the order recording the compromise a decree has already been passed. If the appeal is accepted the decree on the basis of the compromise ceases to exist. Although these are cases of appeals and the case with which I have to deal is one of an application to set aside an order the principle involved is the same. If the order is set aside the decree which is based on it would be automatically vacated. Under section 17 a decree is passed only when an application to set aside the award has been dismissed. If in the present case an application to set aside the award was restored the decree on the basis of the award would automatically fall. There was no good ground, therefore, for refusing hear the application for restoration of objections.

In the view that I take there is no need to consider whether the application to set aside the decree was properly dismissed. I would point out. however, that if the pro ceedings before the learned Senior Civil judge be regarded as one and the application to set aside the award be not regarded as a distinct proceeding. there is no reason why the application for restoration of objections should not be treated as an application for setting aside the ex parte decree. It was the intention of the appellant to get rid of the decree passed against him when he put in an application for restora tion of the objections to the award. There is no harm in treating a proceeding of one kind as of another kind where the prayer is substantially one that ought to have been made. If we regard the first application as one for setting aside the ex parte decree, both the grounds on which the applica tion to set aside the ex parse decree has been dismissed disappear. The application was within time and it referred to the fact that the appellant failed to appear on account of the stay order.

The result is that I set aside the order under appeal as well as all proceedings taken by the Senior Civil Judge after the 11th of July, 1951. The proceedings will now begin from the stage at which they were when the stay order was passed. Costs of this appeal will be costs in the cause.

A. H. Appeal accepted.

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