MANSAB ALI And Others vs Malik MUHAMMAD SALAM And 3 Other
The petitioners sought leave to appeal against the order of the Baluchistan High Court, which dismissed their Regular First Appeal and Civil Revision against an order setting aside an arbitration award. The core legal questions involved whether a decree sheet was mandatory for filing an appeal against an order refusing to make an arbitration award a rule of the court, and whether a civil revision was competent when an appeal lay against such an order. The Supreme Court of Pakistan granted leave to appeal, holding that the contentions raised regarding the applicability of Section 2(2) of the Code of Civil Procedure 1908 and Section 39(vi) of the Arbitration Act 1940 required detailed examination. The key principle laid down is that an order refusing to make an award a rule of the court is appealable as an order under the Arbitration Act, and no decree is required to be drawn up in such circumstances.
- Whether a decree sheet is required to be filed with the memorandum of appeal when challenging an order setting aside an arbitration award?
- Is a civil revision competent against an order that is separately appealable under the Arbitration Act 1940?
- When is a decree required to be prepared under Section 17 of the Arbitration Act 1940?
- Section 14, Arbitration Act 1940
- Section 17, Arbitration Act 1940
- Section 39(vi), Arbitration Act 1940
- Section 2(2), Code of Civil Procedure 1908
ORDER
MANZOOR HUSSAIN SIAL, J.---The petitioners in these petitions seek leave to. Appeal against order dated 22-11-199'3 of the Baluchistan High Court whereby Regular First Appeal No.9 of 1993 and Civil Revision No.50 of 1993 filed by the petitioners were dismissed.
2. The petitioners and Malik Muhammad Salam respondent entered into partnership business on 9- 4-1988 for the supply of Mazari Cloth to the Inspector-General Frontier Corps Quetta under the name and style of M/s 'Khayam' Enterprises.
3. The contract was completed on 9-7-1989. The dispute, however, arose between the parties with regard to the apportionment of amounts received pertaining to the execution of the project. In order to resolve the dispute, the parties through a deed dated 26-1-1990 agreed to refer the matter for decision through arbitration. Sardar Muhammad Tahir Luni and Malik Masoom Khan were appointed arbitrators to resolve the dispute between the parties. The arbitrators gave their award on 19-4-1990 allowing an amount' of Rs.4,11,17,000 to the petitioners. An application was filed under section 14 of the Arbitration Act, 1940 in the Court of Senior Civil Judge, Quetta, to make the award/rule of the Court. This application was dismissed and the award given by the arbitrators was set aside vide order dated 8-11-1992.
4. The petitioners challenged the aforesaid order through Regular First Appeal No.9 of 1993 as also through Revision Petition No.50 of 1992 before the Baluchistan High Court which were dismissed vide impugned judgment, referred to above..
The appeal was dismissed on the ground that the petitioners did not file decree sheet with the memorandum of appeal. The revision petition was dismissed on the ground that the impugned order being appealable no revision was competent:
5. Learned counsel for petitioners contended that the impugned order passed by the Baluchistan High Court was appealable under section 39(vi) of the Arbitration Act; therefore, no decree was prepared in terms of the aforesaid order. Section 2(2), C.P.C. Provides that a decree shall not include an order which is "appealable. It was also submitted that vide order dated 8-11-1992, the learned Senior Civil Judge set aside the award and dismissed the application seeking the same to be made rule of the Court. Since the award was rejected and not made rule of Court, the order having not been passed in terms of the award was appealable order and no decree, therefore, was required to be prepared nor the same was prepared. The decree, as envisaged under section 17 of the Arbitration Act, 1940, was required to be prepared if the Court pronounced the judgment in terms of the award.
After hearing learned counsel for petitioners we are inclined to grant leave to appeal in both these petitions to examine the aforementioned contentions raised by the learned counsel for petitioners.
We further direct that the appeals arising out of Civil Petitions Nos.58, 59, 84 and 10-Q of 1994 be fixed for hearing together.