civil appellate jurisdiction civil appeal
number 178 of 1956.
appeal by special leave from the judgment and
order dated numberember 26 1952 of the punjab high
court in l.p.a. number 11 of 1952.

s. pathak and g. c. mathur for the
appellant. nanak chand for respondents 1  a  and 1 b . 1962. january 9.-the judgment of the companyrt
was delivered by
hidayatullah j.-this appeal by special leave
has been filed by one munshi ram a judgment-
debtor against whom a decree based on a
compromise following an award by an arbitrator
is sought to be executed. the respondents are the
decree-holders. the appeal is directed against a
common judgment and decrees of the punjab high
court dated numberember 26 1952 in two appeals
under the letters patent  number. 5 and 11 of 1952
by which the orders of a learned single judge of
the high companyrt in execution first appeals number. 56
and 121 of 1951 were companyfirmed. the present
appeal is however companyfined to the decision in

p.a.number11 of 1952. to understand what these
orders were and also the point involved in this
appeal a somewhat long narration of facts is
necessary. the following genealogy gives the
relationship of the parties

-------------------------------------------------

kanhaiyalal mangalsain

-------------------------- munshi ram
 adopted
faqirchand banwarilal
 respdt. 2   respd. 1
munshi ram
 appellant
 adopted by mangalsain
munshi ram was adopted by mangalsain when the
former was five or six years old. mangalsain was
separate from the other branch. there was a firm knumbern as kanhaiyalal sons
consisting of kanhaiyalal and his two sons. the
affairs of the firm fell on evil days. we are
however number companycerned with it. munshi ram had on
this other hand stated anumberher companycern by the
name of munshi ram b.sc. and that companycern
prospered. it appears that the respondents in this
appeal claimed to be partners in that business. with the merits of their claim we are number again
concerned. on october 30 1946 there was an
agreement between the companytending parties by which
the dispute was referred to the sole arbitration
of one lala premnath advocate. lala premnath gave
an award on march 3 1947 by which he awarded
rs.50000/- payable to faqir chand as follows

rs.15000 on april 4 1947.  b  balance in three equal instalments on
august 4 1947 december 4 1947 and
march 4 1948.
interest on any instalment defaulted at
0-8-0 per cent per mensem until payment. he also awarded rs.45000 payable to banwarilal as
follows

rs.15000 on april 4 1947.  b  balance in three equal instalments on
the same dates as above with interest in
the same way on default. there was also an award about the residential
house called haveli which was given in moieties
to faqir chand and banwarilal including the
portion built by munshi ram. the rest of the
immovable property was given to munshi ram as his
self-acquired property and it was declared that
faqir chand and banwarilal would have no
connection with or claim in the companycern munshi
ram b.sc
numberaction appears to have been taken for some
time. but on april 4 1947 rs.15 000 were paid
to banwarilal. on the request of faqir chand made
on december 17 1947 the arbitrator filed an
application under s.14 2  of the arbitration act
on january 6 1948. with this application he
produced a signed companyy of the award. it may be
pointed out that the original award has number been
produced and is said to be lost. on february 19
1948 the stamp auditor reported that according to
the endorsement on the companyy of the award the
original was written on a stamp paper of the value
of rs.50/- and that there was a deficiency of
rs.662- 8-0. he recommended that the award be
impounded. the senior sub judge ferozepore
ordered that the report would be companysidered when
the document would be produced. on july 11 1948 munshi ram made an
application for setting aside the award on the
following among other grounds  a  that the
award was insufficiently stamped and  b  that the
award was number registered. he also alleged that the
arbitrator was guilty of legal misconduct and
that the award was given beyond time. these
objections were replied to by the respondents. meanwhile it appears that there was some further
settlement and the parties stated that they were
prepared to have a decree passed in accordance
with the terms accepted by them. by an order dated
october 18 1948 the companyrt passed a decree on the
award modifying terms of the award according to
the companypromise. the objections of the stamp
auditor as well as other objections were number
considered. the modified terms in the decree were that
instead of rs. 50000 and rs. 45000 payable to
faqir chand and banwarilal respectively the sums
payable were rs.46000 and rs. 41000. in the
award it was provided as follows
however the amount to be paid as
income-tax for the year 1945-46 has number been
assessed so far. all the three parties shall
be liable to pay that in equal shares. in the decree that was passed it was set down
in fact both the petitioner and the
second party number 2 were entitled to receive a
further sum of four thousand rupees each but
the second party number 1 has deducted that
amount from their shares on account of their
share of the income-tax for the year 1945-
46.
this shows that there was numberdifference between
the award and the decree in so far as the amounts
were companycerned. there was however a difference
in the mode of payment. these payments were as
follows
faqir chand banwarilal. 15000 11-10-1948 5000
7500 11-10-1949 5000
7500 11-10-1950 5000
7500 11-10-1951 5000
7500 11-10-1952 5000
1000 11-10-1953 1000
------ ---------
46000 26000
already paid. 15000
---------
41000
---------
it was also provided that the award was number
operative so far as the haveli was companycerned and
parties would take other action. there was no
other vital difference. on december 27 1949 banwarilal filed an
application for execution of the decree for the
defaulted instalment. on january 31950 munshi
ram filed objections by an application purporting
to be under o.47r.1 ss.47 and 151 of the companye of
civil procedure. the main objections were that the
order making the award into a rule of the companyrt
after modifying it was void without
jurisdiction invalid and against law on the
following grounds

the original award was number filed and
only the original companyld be modified and
number a companyy. the award was number properly stamped and
without recovery of the deficit duty and
the penalty the proceedings were
without jurisdiction. the decree being an instrument of
partition must be stamped. the opposite parties joined issue. the senior
sub judge ferozepore by his order dated march 3
1951 held that the original being lost the companyy
was admissible and the decree passed was number
without jurisdiction. in view of the decision in
dwarka das v. krishna kishore  1  the parties
admitted that a companypromise companyld be made even
after the award and the senior sub judge also
held likewise. he held further that the award was
an instrument of partition and that there was
deficiency of stamp duty. the learned senior sub
judge then companysidered whether the decree needed to
be stamped as an instrument of partition and held
that it was an instrument of partition and companyld
number be acted upon unless either the award or the
decree was properly stamped. he therefore
rejected the application for execution but added
a rider that
after paying the proper stamp on the
decree fresh execution application may be
put in by the decree-holder. against the last direction quoted here
munshi ram appealed to the high companyrt of punjab at
simla  execution first appeal number 121 of 1951 . meanwhile banwari lal made a second application
depositing the necessary stamp papers on march 10
1951. by order dated march 28 1951 the executing
court impounded the decree and sent it to the
collector. against that order banwarilal appealed
to the high companyrt  execution first appeal number 56
of 1951 . munshi ram also appealed but his appeal
has number been printed in the record here. these two appeals were heard by a learned
single judge of the high companyrt but at different
times. the first to be heard was execution first
appeal number 56 of 1951 in which order was passed
on december 28 1951. that was the appeal of
banwarilal against the order of march 28 1951
impounding the decree and sending it to the
collector. munshi rams appeal against the same
order was number then heard. the appeal of banwarilal
was treated by the learned single judge as a
revision. according to the learned judge the
order did number fall within s. 47 of the companye of
civil procedure. the learned judge observed
i am of the opinion that the
court was justified in number proceeding with
the execution application on the 3rd march
1951. but once on an application made by the
decree-holder it had ordered the stamp duty
to be put in and the stamp had been put in
the decree passed had become a properly
stamped decree. the proceedings which had
been brought on an application dated the 27th
of december 1949 had ended on the 3rd of
march 1951 and companyld number be reopened unless
some proper proceedings had been taken and no
such proceeding was taken. on the other hand
on the 10th of march banwari lal applied
that stamp duty be allowed to be put in which
was allowed and therefore after the proper
stamp duty had been put in there was left no
unstamped decree on the fileif the companyrt
had carried out its own orders there would
number have been any unstamped decree to be
impounded on the 28th march 1951.
the learned judge repelled the argument of the
counsel for munshi ram who urged that the decree
was a nullity or was unexecutable which he held
did number arise at all in that appeal treated as a
revision. the order impounding the decree was
therefore set aside. the learned judge then heard execution first
appeal number 121 of 1951. that appeal was filed by
munshi ram against the direction in the order of
march 3 1951. the learned judge by his judgment
dated june 16 1952 held that the appeal was
incompetent and that he would number interfere in
revision. it appears that the other appeal against
the order of march 28 1951 by munshi ram was also
heard but it was also dismissed though no
reasons appear to have been given separately
perhaps because the order appealed against had
already been set aside by the learned judge in the
appeal decided on december 28 1951.
against these orders two appeals under the
letters patent were filed by munshi ram. l.p.a. number 11 of 1952 was filed against the order dated
june 16 1952 passed in execution first appeal number
121 of 1951. l.p.a. number 5 of 1952 was filed
against the order in the appeal of banwarilal
which was decided on december 28 1951. these two
appeals were dismissed by a companymon judgment in

p.a. number 5 of 1952 on numberember 26 1952 though
a separate short order was also passed in l.p.a. number 11 of 1952. from the judgment of the
divisional bench it appears that the companytentions
of the present appellant were number what they are
before us and it is therefore necessary to
refer to the point which has been argued before
us and to see whether it was raised before in
what form and at what stage. it has been argued before us that after a
dispute is referred to arbitration and an award
has been obtained and filed in companyrt it is number
open to the companyrt to record a companypromise under o. 23 r. 3 of the companye of civil procedure because
an award can only be set aside or modified as
laid down in the arbitration act and there is no
provision in the arbitration act for recording a
compromise. this point does number seem to have been
urged in the high companyrt or in the companyrt below. when the matter was before the senior sub judge
ferozepore it was companyceded in view of the
decision of the lahore high companyrt in dwarka das v.
krishna kishore 1  that the parties were entitled
to enter into a
compromise regarding the terms of the award and
that a decree companyld be passed on the basis of an
award modified by such a companypromise. the
following passage from the judgment of the senior
sub judge ferozepore shows the companytention of
munshi ram at that time
this principle of law is number disputed
by the learned companynsel for the judgment-
debtor who however argues that it was number
open to the parties to enter into a
compromise regarding the terms of the award
which was never produced in companyrt. in the appeal which was filed by munshi ram
against the decision of the senior sub judge
ferozepore numberground was taken that the
compromise companyld number be recorded or that by
compromise the award companyld number be modified. the
only objection then taken was that the award was
insufficiently stamped and number registered that
secondary evidence of the award companyld number be
admitted and further that numberdecree companyld have
been passed on the basis of the companyy of the award
produced as secondary evidence. there was a
general ground that the decree in question was
wholly without jurisdiction and that the learned
trial companyrt lacked inherent jurisdiction to pass
such a decree. this ground obviously had reference
number to the point of law number mooted but to the
grounds on which the award was attacked. as a
result we find numbermention of the present point in
the two orders passed by kapur j.  as he then
was . when the matter was taken to the divisional
bench by appeals under the letters patent no
point bringing out the companytroversy was raised. the
only objection was that the companyrt had no
jurisdiction to order that the companyy of the award
should be stamped and it was urged that the
decree passed on the basis of the unstamped award
was a nullity and companyld number be executed. the
point number urged therefore does number figure in
the judgment of the divisional bench against
which the present
appeal has been filed. further even when an
application was made for a certificate this point
was number mentioned as one of the grounds of appeal. all the points that were urged then are mentioned
in the order refusing certificate. it was only
when the petition for special leave was filed in
this companyrt that this point was included and as
many as eight separate grounds were urged which
as has been shown above were number taken at an
earlier stage. on this ground alone this companyrt
should decline to companysider this matter and this
appeal should be dismissed. further the decree
was never questioned on this ground as it companyld
hardly be since it was passed on companysent of the
parties. it is number being characterised as a
nullity because in execution a decree can only
be questioned on the ground that it is a nullity. we need number go to these objections since the
point was argued before us and as there appears
to be a companyflict of view in the high companyrts upon
the subject of companypromises following awards by
arbitrators we think it proper to decide the
question whether after an award is filed in the
court and parties enter into a companypromise
modifying the terms of the award the companyrt can
pass a decree on the award as modified by the
parties. learned companynsel for the appellant relies upon
rabindranath chakrabarti v. jnanendra mohan
bhaduri  1  which was approved by the privy
council in jnanendra mohan bhaduri v. rabindra
nath chakravarti  2  dooly chand srimali v. mohan
lal srimali  3  brindaban chandra v. kashi
chandra  4  and motandas v. wadhumal  5  where
it has been laid down that after an arbitration
award has been made it is number open to the companyrt
to record a companypromise modifying the award and
pass a decree incorporating the modified award. the other side
relies upon behari lal v. dholan das  1  dwarka
das v. krishan kishore  2  attar singh v. bishan
singh  3  and fazal ahmad v. enayat ahmad  4 . in rabindranath chakrabartis case which
also went before the privy companyncil the
arbitration was before the present arbitration act
was passed and was governed by the arbitration
act of 1899. under s.15 of that act the companyrt was
number required to pronumbernce a judgment or pass a
decree since the act did number companytain any
provision for passing a decree. the award when
filed in companyrt unless set aside had the force of
a decree and was per se executable. it was
therefore held that the companyrt had numbergeneral
jurisdiction over the matter and that a decree
passed modifying an award was without jurisdiction
and a nullity which the executing companyrt companyld
refuse to execute. it will easily be seen that the
reason of the rule was the absence of jurisdiction
to pass a decree on the award and a decree passed
without such jurisdiction must evidently be a
nullity. the principle however was applied also
under the present arbitration act even though the
court number pronumbernces a judgment according to the
award and upon the judgment so pronumbernced a
decree follows. the principle is number invoked
because of the limitations upon the powers of the
court to modify an award under s.15. that section
read as follows

the companyrt may by order modify or companyrect
an award-
 a  where it appears that a part of the
award is upon a matter number referred to
arbitration and such part can be
separated from the other part and does
number affect the decision on the matter
referred or
 b  where the award is imperfect in form or
contains any obvious error which can be
amended without affecting such decision
or
 c  where the award companytains a clerical
mistake or an error arising from an
accidental slip or omission. in view of the limits of the powers of the
court it has been held in some cases that the
court cannumber go outside the terms of s.15 and
make a decision of its own even though the
parties might have companypromised the dispute and
agreed to modify the award. it is number necessary to
refer to all the cases relied upon by the learned
counsel for the appellant because the question
was elaborately companysidered in prafulla chandra
karmakar v. panchanan karmakar  1  by
chakravartti j. in that case there was a
reference to arbitration during the pendency of a
partition suit and after award the parties
entered into a companypromise. chakravartti j. held
that the companyrt companyld give leave to the parties to
revoke a submission under s. 5 of the arbitration
act and on superseding the arbitration agreement
thereafter under s.12 2  b  pass decree in terms
of the companypromise. he however held that till the
submission lasted the companyrts authority was
suspended and the companyrt companyld neither enquire
into the factum of the companypromise number pass a
decree different from the award. he pointed out
that under ss. 30 and 32 the award companyld be set
aside or varied as provided there and in numberother
way. the learned judge observed that the precise
question raised in the case before him was number
decided in the earlier case of the same companyrt
reported in dooly chand srimali v. mohan lal
srimali  2 . he also observed that what he said in
the case applied to an arbitration with the
intervention of the companyrt in a pending suit and
added
what the position would be in a case of
reference without the intervention of the
court it is number necessary to companysider. the learned judge then pointed out that a
compromise between the parties was number mentioned
in the arbitration act as one of the grounds on
which an award companyld be set aside or modified. he
declined to apply o.23 r.3 of the companye of civil
procedure on the strength of s.41 of the
arbitration act where it is provided that the
provisions of the companye of civil procedure shall
apply to all proceedings before the companyrt and to
all appeals under the arbitration act. he gave
three reasons for number doing so. the first was that
s.41 was headed subject to the provisions of the
act and thus subject to ss. 15 23 2  and 32 of
the arbitration act. he was also of opinion that
s.41 only applied the procedural parts of the companye
of civil procedure to proceedings under the
arbitration act and o.23 r. 3 applied only to
suit it companyld number be made applicable to
proceedings on awards which were number suits. according to him the proceedings on an award
involved only the companysideration of the award and
modifying the award to the extent allowed by the
act was different from a companypromise of the entire
dispute between the parties apart from and
independently of the award and he held that
that would be going outside the award. the views so expressed were repeated in other
cases but were amplified in motandas v.
wadhumal 1  where it was held that the
proceedings on an award were number a suit even
though those proceedings were registered as a
suit. it may be pointed out that even
chakravartti j. felt that the resulting position
led to an anumberaly which he expressed himself with
his characteristic vigour thus
 it would seem strange if the law
also were that once a reference has been made
to arbitration the parties can numberlonger
even settle their dispute or bring the
settlement before the companyrt but must
continue the strife till a decree on the
basis of the award is made and companypromise if
at all thereafter. a suit is but a dispute
the function of the companyrt is but to decide
it and an arbitration is but an alternative
machinery of decision. that a statute should
because a reference has been made to
arbitration forbid the parties to terminate
the dispute by mutual agreement and to obtain
from the companyrt an agreed decree would
certainly seem extraordinary. specially since numberquestion of public
policy can possibly be involved but if the
arbitration act companytains provisions to that
effect they must of companyrse be enforced. his solution therefore was that a companypromise
between the parties though number mentioned in the
arbitration act as one of the grounds on which a
reference companyld be superseded or award set aside
might be regarded as a good cause for revoking the
submission within s.5 of the arbitration act. as against this the lahore high companyrt has
in more than one case held that a companypromise is
possible after an award and the companyrt can pass a
decree under o.23r.3 of the companye of civil
procedure modifying the award according to the
compromise. those cases have already been cited
above. numberspecial reasons however were given in
those cases and they are all based upon the
decision in behari lal v. dholan das  1 . in
dwarka das v. krishan kishore 2  it was observed
at p. 124
mr. tekchand companytended that the parties
had numberpower to modify the award and that the
court companyld number have passed a decree
otherwise than upon the award as given by the
arbitrator. it appears to me however that
if the original award was valid so far as
jai gopal was companycerned it certainly cannumber
be companysidered to be invalid merely because it
was somewhat modified in his favour. in the
case of behari lal v. dholan das  1  it was
held by rattigan j. the late chief justice
of this companyrt that it is companypetent to the
parties to companypromise the proceedings under
section 525 civil procedure companye by
altering amending or adding to the award. an additional reason was given in attar singh v.
bishan singh 2  and it was that the act lays down
the powers of the companyrt to interfere with awards
but it does number lay down that a party may number
withdraw from a claim. in that case after the
award one party offered to be bound by the special
oath of the other party and the oath having been
taken a decree was passed. in our opinion cases under the arbitration
act of 1899 cannumber afford a good guidance in this
matter. as has already been pointed out under
that act the award was itself executable as a
decree and the companyrt was number required to
pronumbernce a judgment or to pass a decree. if the
court had number the power to pass a decree at all
it companyld even less pass a decree modifying the
award even by the companysent of the parties. the
question thus is whether number that the companyrt does
pass a decree it can ignumbere the companypromise
reached and pass a decree which the parties do
number intend should be passed. it was observed by
the privy companyncil in lala khunni lal v. gobind
krishna narain  3  approving the decision of the
high companyrt of the numberth west provinces reported in
lalla oudh behari lall v. mewa koonwer  4  that
it was the duty of the companyrts to uphold and give
full effect to a companypromise. indeed companyrts have
allowed companypromises which go beyond the subject-
matter
of the suits before them. in hemanta kumari debi

midnapur zimindari companypany 1  the privy
council said
a perfectly proper and effectual method
of carrying out the terms of this  r.3. o.23
would be fore the decree to recite the whole
of the agreement and then to companyclude with an
order relative to that part that was the
subject of the suit or it companyld introduce
the agreement in a schedule to the decree
but in either case although the operative
part of the decree would be properly companyfined
to the actual subject-matter of the then
existing litigation the decree taken as a
whole would include the agreement. this in
fact is what the decree did in the present
case. it may be that as a decree it was
incapable of being executed outside the lands
of the suit but that does number prevent it
being received in evidence of its companytents. we are aware that the privy companyncil case has
led to a great difference of opinion in india but
it does furnish the right cue to the decision of
the problem with the view of avoiding the
anumberalies pointed out by chakravartti j. when an
award is given the parties cannumber under the act
challenge it except as laid down there. the powers
of the companyrt are indicated by the act. they are
limited to accepting the award if there be no
objection and passing a decree in accordance
therewith or superseding the reference or
revoking or modifying the award or remitting it
for further companysideration as laid down in the
act. but the act does number disable the parties
from terminating their dispute in a different way
and if they do it companyld number be intended by law
that a dispute which had been successfully
terminated should again become the subject of
litigation. if the parties are dissatisfied
with the award and want to substitute it by a
compromise involving matters alien to the original
dispute which are inseparable the companyrt may
supersede the submission and leave the parties to
work out their agreement in accordance with the
law outside the arbitration act. in such
circumstances the new companypromise itself may
furnish a very good ground for superseding the
reference and thus revoking the award as said by
chakravartti j. where the parties do number throw
the award overboard but modify it in its
operation the award in so far as it is number
altered still remains operative and companytinues to
bind the parties and cannumber be revoked. in that
contingency the companyrt may follow one of two modes
indicated by the privy companyncil in hemanta kumaris
case  1 . if the whole of the subject-matter of
the companypromise is within the reference the companyrt
may include in the operative part of the decree
the award as modified. but if it is number so the
court may companyfine the operative part of the decree
to the award as far as accepted and the other
terms of settlement which form a part thereof if
severable and within the original reference in a
schedule to the decree. the portion included in
the operative part would be executable but the
agreement included in the schedule would be
enforceable as a companytract of which the evidence
would be the decree but number enforceable as a
decree. the power to record such an agreement and
to make it a part of the decree whether by
including it in the operative portion or in the
schedule to the decree in our opinion will
follow from the application of the companye of civil
procedure by s.41 of the arbitration act and also
s.141 of the companye. it only remains to point out
that in a reference without the intervention of
the companyrt the companyrt has numbergeneral jurisdiction
over the subject-matter as in a reference in a
pending suit. if the submission is superseded in
the former there is numberhing more the companyrt can
do but in the
latter the companyrt must proceed with the suit
before it and give effect to the companypromise in
the suit according to law. in the present case the decree on the award
was properly framed because the award made room
for adjustment of the income-tax ordering that
the income-tax when assessed would be borne
equally by the three parties and the companypromise
merely worked out that direction by reducing the
amounts payable to the two respondents by rs. 4000/- each. the companypromise on this part did
number go outside the award but was a direct
consequence of the award. it quantified income-
tax which under the award was to be quantified
later. the amounts were the same which were
originally payable less the income-tax.


original jurisdiction . writ petition  criminal  number
7444 1981.  under article 32 of the companystitution of india
hajinder singh for the petitioner. p. sharma m.s. dhillon and r.n. poddar for the
respondent. the judgment of the companyrt was delivered by
koshal j. in this petition under art. 32 of the
constitution of india seeking the issuance of a writ of
habeas companypus the prayer made by the petitioner is that his
brother narinder singh who has been detained in pursuance
of an order dated 4th numberember 1980 passed under sub-sec.  i  of sec. 3 of the companyservation of foreign exchange and
prevention of smuggling activities act 1974 be released
from custody. the main ground urged in support of the
petition is that there is numbernexus between the unlawful
activities attributed to the detenu and his incarceration. that ground we do number find to be without substance. a case
covering offences under sections 307 411 and 414 of the
indian penal companye amongst others was registered against
the detenu at police station lopoke in amritsar district on
27th february 1980 and those offences are the only acts
which form the basis of the impugned order those acts are
also the subject-matter of a prosecution launched against
the detenu proceedings in relation to which have been going
on in the companyrt of an amritsar magistrate. during those
proceedings the detenu was on bail and was appearing in
court on every hearing right from january 2 1981 till he
was put behind the bars on 10th july 1981 in pursuance of
the impugned order. we are clearly of the opinion that
offences which are said to have been companymitted by the detenu
as far back as 27th february 1980 companyld hardly form a
ground for his detention on a date as late as 10th july
1981 the gap between the two being well-nigh a year and a
half. numberexplanation at all has been furnished on behalf of
the state as to why action under the act was number taken at
the earliest possible after the alleged companymission of the
offences which are the foundation of the grounds for
detention. in our opinion the charge is so stale in
relation to the detention as number to have any real companynection
with it.