1. These four appeals Nos. 81 and 82 of 1957, No. 33 of 1958 and No, 13 of 1959 are between the same parties and are the outcome of an arbitration proceedings consequent upon a private reference to arbitration which resulted in a judgment and decree on the basis of an award.
2. Appeal No. 81 of 1957 is against the order refusing to set aside the award. The appeal was preferred under Section 39 of the Arbitration Act. Appeal No. 82 of 1957 is directed against the order recording the compromise between the parties after the award had been filed in court. The appeal purports to be under Order 43 (1) (m) of the Civil Procedure Code. Appeal No. 33 of 1958 is directed against the order refusing to issue process of attachment in execution against the privy purse of the defendant judgment-debtor, Nawab of Jaora who is the Ex-Ruler of one of the princely States which initially merged into Madhya Bharat and now forms part of the State of Madhya Pradesh. Appeal No. 13 of 1959 is directed against the order in execution rejecting the contention raised on behalf of the judgment-debtor that the decree sought to be executed is without jurisdiction and hence is unexecutable.
3. All the appeals except appeal No. 33 of 1958 are preferred by Nawab Usmanalikhan the Ex-Ruler of Jaora--against whom decree on the basis of an award was passed. They are directed against one Sagarmal S/o Bheraji who is the decree-holder and the opposite party in the arbitration proceedings between the Nawab and himself. Appeal No. 33 of 1958 is preferred by Sagarmal against the Nawab and pertains to an order refusing to issue process for attachment of the privy purse of the said Ruler. Since the questions raised in these appeals are either common or are interlinked all the appeals were heard together and are being disposed of by this common judgment.
4. The facts which are material for consideration of these appeals are few and simple. 5. On 23-2-1957 an agreement of reference was entered into between Nawab Usmanali Khan, Nawab of Jaora State and Sagarmal Bheraji also of Jaora whereby both the parties agreed to refer the dispute regarding their money dealings (Len Den) to the arbitration of Lala Durgashankarji Advocate of Jaora as the sole arbitrator. It was mentioned in the agreement of reference that the said arbitrator could examine the accounts and other relevant documents between the parties and determine the dispute and further Jay down the mode of payment of the amount found due. The agreement purported to be signed by the Nawab himself and his creditor Sagarmal. Below the Nawab's signature there was the signature of his Ammukhtyar Masud Ahmad Jafri.
In pursuance of this agreement the arbitrator Shree Durgashankar Advocate gave an award on the same date. By the terms of the award the textent of liability of the Nawab was determined to be Rs. 1,60,000/-. This amount was directed to be paid by eight quarterly instalments as mentioned in the award, the first instalment being made payable on 1-7-1957. It was further mentioned the letters of authority, for realising the aforesaid amount out of the amount of Privy Purse which the Nawab receives at the interval of every quarter corresponding to the dates of instalments, had been made over to the creditor Sagarmal. The award further provided that the documents incorporating security in respect of debts charged against land and ornaments would continue to remain in force as long as the said debts are not paid off and the Nawab will not be entitled to effect transfer of the said land till then. The award also provided that in case default is made in paying a single instalment the creditor will be entitled to recover the entire balance remaining due at once.
6. Below the award, which was signed by the Arbitrator there are the signatures of the creditor Sagarmal and also of the Nawab of character similar to that on the agreement with the signature of the Mukhtyar Masud Ahmad Jafri below it indicating admission of the receipt of notice of the award by both the parties,
7. On the same date the arbitrator filed the award in the court of District Judge Ratlam within whose jurisdiction the town of Jaora is situate as required under Section 14 of the Arbitration Act.
8. After the issue of notice to the parties regarding the filing of the award a written submission was made on 9-3-1957 under the signature of Shree Masud Ahmad Jafri as representing the Nawab accepting the award and requesting the court to pass a decree in favour of the creditor Sagarmal in terms of the award. On the same day an application was submitted on behalf of the Nawab by Mr. Manakchand Bhandari, holding Vakalatnama for the Nawab, requesting that the direction be made to the arbitrator to file all the papers relating to the proceedings of arbitration and that on their submission steps would be taken to set aside the award.
The court gave time to file reply and fixed 23-3-1957 as the date. On that day further time was asked for to file the reply. The case was to be put up on 2-4-1957. On that date, it appears an application was submitted of behalf of the Nawab under Sections 30 and 33 of the Arbitration Act seeking to set aside the award on certain grounds of objection to the same. This was signed by the Nawab and countersigned by Shree Manakchand Bhandari, the counsel for the Nawab. However three days later i.e. on 5-4-1957 another application was submitted under the signature of the Nawab this time by the Ammukhtyar Shree Masud Ahmad stating that the objection raised on behalf of the Nawab by his counsel Shree Manahchand Bhandari were being withdrawn and cancelled and requesting the court to pass the decree in terms of the award subject to the modification regarding the amount of instalments. ,lt was prayed that instead of the instalments of Rs. 21000/-and Rs. 19000/- as stated in the award there should be instalments of Rs. 13000/- every quarter. The creditor endorsed on the back of this application his consent to the modification of the amount of instalments.
9. The Arbitrator filed the relevant papers on 30-4-1957. On that day another application was submitted on behalf of the Nawab by Shree Abdul Alim Khan another Am Mukhtyar under Order 23, Rule 3, C. P. C. seeking to set aside the compromise application referred to above and praying for setting aside of the award. A copy of this application was given to the counsel for Sagarmal and the case was fixed for hearing on 19-6-1957. On that day an application dated 17-6-1957 was sent through registered post stating that the objections filed by Shree Abdul Alim Khan Am Mukhtyar had been done without the authority of the Nawab and that the latter did not wish to press the same and further stating that he would stick to the reply of 5-4-1957. When the matter came up before the court none appeared for the Nawab. The court thereupon passed the judgment on 19-6-1957 in terms of the award with the modification agreed to by the parties in their submission dated 5-4-1957. A decree was accordingly passed.
10. Subsequent to the passing of the decree the decree-holder. Sagarmal filed an execution petition for realisation of the decretal amount. This was done on 5-4-1958. Objections were taken to the executability of the sward on several grounds including those relating to jurisdiction, incompetency due to provisions of Section 86(1) read with Section 87B, C. P. C., want of registration of the award and competency of Civil Court to attach the Privy Purse of the Nawab. All the objections except the last one were overruled. As regards the last mentioned objection it was held that the Privy Purse of the Nawab is nothing else than a political pension and as such is non-attachable.
11. As indicated at the outset two separate appeals were preferred on behalf of the Nawab against the order of the court dated 19-6-1957 treating it as the order refusing to set aside an award and also as an order recording a compromise. An appeal was also filed on behalf of the Nawab against the order in execution overruling the objections raised to the executability of the decree based on the award except one regarding Privy Purse. An appeal was preferred by the decree-holder against the order upholding the last mentioned objection.
12. Fairly long and elaborate arguments were addressed by the two learned counsel appearing on behalf of the Nawab. Mr. Sanghi appeared on his behalf in the appeals in respect of the original proceedings while Mr. Mohammad Ahmad Khan represented him in appeals in execution. On behalf of Sagarmal the case was argued by Messrs. Chitale and Chaphekar.
13. It will be convenient to state the points raised by the learned counsel on either side and to deal with them seriatim and thereafter to dispose of all the appeals in view of the conclusions reached on them.
14. But before dealing with these points it is necessary to dispose of one preliminary objection regarding limitation. It was contended on behalf of respondent Sagarmal that the appeal No. 81 of 1957 is barred by time.
15. In my opinion this preliminary objection cannot prevail.
16. Appeal No. 81 of 1957 is preferred under Section 39 of the Arbitration Act against the order passing judgment in terms of the award subject to the modification to which parties agreed as regards the amounts of instalments payable by the appellant to the respondent. The order was passed, on 19-6-1957. The appeal is presented on 24-9-1957. The copy of the order filed along with the memorandum of appeal discloses that the application for copy was given on 18-9-1957 and the copy was ready on 19-9-1957. Thus according to this statement in the copy the appellant is entitled to only two days. However a certified copy of the application submitted by the appellant for obtaining the said copy has been filed. That copy discloses that the application for copy was filed on 17-9-1957 and the appellant received the copy on 21-9-1957. There is nothing to indicate on the face of the copy that he was asked to attend earlier than on 21-9-1957 for receiving copy.
The application for copy, of which the aforesaid certified copy is filed, is not traceable in the record 'and it is possible that it had been misplaced and has not been put in the record. The number of days in respect of which the appellant is entitled to claim deduction, on the assumption that the certified copy of the application for copy makes correct mention of facts, are five. The appeal accordingly ought to have been filed on 22-9-1957. But 22nd was Sunday and 23rd was a holiday as it was Sarva Pitri Amavasya. The appeal therefore filed on 24-9-1957 is within time. It was contended that the certified copy discloses that only two copying days can be allowed. But it is not shown that the certified copy of the application for copy refers to a different application than one in pursuance of which the certified copy of the order of 19-6-1957 is filed with the memorandum of appeal. The appeal no. 81 of 1957 is therefore within time and the preliminary objection is overruled.
17. We shall now proceed to state the points involved in these four appeals. Principal points- raised in these appeals are the following;
(I) The Privy Purse, which the Nawab of Jaora receives from the Central Government at every quarter is not a political pension within the meaning of the term as used in Section 60(1)(g), C. P. C.
(II) The decree consequent upon proceedings of arbitration is a decree passed as a result of 'sums' within the meaning of the term as used in Section 86(1) read with Section 87(b), C. P. C. and that the proceeding was incompetent without the prior consent of the Central Government as indicated in Section 86(1), C. P. C.
(III) The award being with reference to immovable property and is calculated to affect immovable property of the value of more than Rs. 100/- is invalid as the same was not registered and neither any judgment in terms of the award not any decree could have been based on that award.
18. Besides these three main points other points raised in these appeals are -
(IV) The award having accelerated payments in respect of debts which had not become due went beyond the scope of reference and is therefore invalid and ought to be set aside.
(V) The award creates charge upon Privy Purse and thereby goes beyond the scope of reference. The award is therefore invalid.
(VI) The Ratlam court had no territorial jurisdiction to entertain the proceeding consequent upon arbitration and award as the award declared continuance of the mortgage of immovable property situated in the Indore District.
(VII) It was incompetent for the parties to arrive at a compromise, once the award was made nor was it competent for the court to give effect to that compromise while acting in a proceeding under the Arbitration Act.
(VIII) The award and the compromise provided for subsistence of the charge upon immovable properties of the debtor, the Nawab of Jaora instead of their being merged in the award. This was illegal and neither the award nor the compromise under the circumstances could have been made a rule of the court.
19. Point No. 1 is raised in the appeal No. 33 of 1958 filed by creditor Sagarmal, while the rest of the points are raised in the appeals filed by the Nawab both against the order dated 19-6-1957 treating it as refusal to set aside the award and as recording a compromise bearing numbers 81 and 82 of 1957 and the appeal Mo. 13 of 1959 against the order in execution holding the decree to be executable and not invalid.
20. These points now will be dealt with seriatim. Point No. 1 :
21. The contention raised by Mr. Chitale the learned counsel for Sagarmal in this regard is that the Privy Purse is a term specially used in the covenant entered into by the Rulers when they agreed to merge their respective territories in the Union of States called Madhya Bharat as also in the Constitution and is not synonimous with political pension. The Privy Purse is therefore not covered by the exemption contained in Section 60(1)(g), C. P. C. and being property is attachable.
22. Before dealing with this point on the basis of authorities as well as on principle it will be material to trace the history regarding this payment which rulers of States which have merged into political entities called the States under the Constitution, receive out of the consolidated funds of the Indian Union being charged to that fund.
23. Prior to 14th August, 1947 the rulers of Princely States in India were politically independent States subject to the paramountcy of the British Crown. The rulers exercised practically sovereign powers so far as the internal administration of their respective territories was concerned. With the declaration of independence on 14-8-1947 the paramountcy of the British Crown lapsed and each ruler of the Princely states became politically an independent sovereign. Later on, on the persuasion of the Government of the Dominion of India, these rulers of Princely States agree-ed to merge their respective territories with a view to bring about welfare of their subjects by the establishment of a state comprising a common executive, legislature and judiciary and in order to give effect to this agreement entered into a covenant. Article XI of this Covenant provided :
'(1) The Ruler of each Covenanting State shall be entitled to receive annually from the revenues of the United State for his privy purse the amount specified against that Covenanting State in Schedule I.
(2) The said amount is intended to cover all theexpenses of the Ruler and his family including expensesof his residence, marriages and other ceremonies, etc., andshall subject to the provisions of paragraph (1) neither beincreased nor reduced for any reason whatsoever.
24. Article XIII provided:
'The ruler of each Covenanting State, as also the members of his family, shall be entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before the 15th day of August, 1947.'
25. The executive head of the new Union of Covenanting States was the Rajpramukh who was required to make the payment of the amount to each rulers as mentioned in Article XI (1). The amount was to be free of all taxes whether imposed by the newly formed State or by the Government of India. These payments were guaranteed or assured by the Dominion of India.
26. These new units of States thus formed later became subject to the Constitution. The Constitution by Article 291 provided as follows :
'(1) Where under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler of such State as Privy Purse -
(a) such sums shall be charged on, and paid out of, the Consolidated Fund of India; and
(b) the sums so paid to any Ruler shall be exempt from all taxes on income.
(2) Where the territories of any such Indian State as aforesaid are comprised within a State specified in Part A or Part B of the First Schedule, there shall be charged on, and paid out of, the Consolidated Fund of that State such contribution, if any, in respect of the payments made by the Government of India under Clause (1) and for such period as may subject to any agreement entered into in that behalf under Clause (1) of Article 278, be determined by order of the President.'
27. Article 362 further enjoined upon the Parliament and the Legislature of every State under Constitution to have due regard to the guarantee or assurance given to the Rulers under the covenants referred to in Article 291 as regards their personal rights, privileges and dignities.
28. It is clear by reference to this historical background as well as to the terms of the covenant and agreement that the term 'Privy Purse' is specially used. Article 291 of the Constitution provides for the constitutional guarantee in respect of the sums payable to the Rulers of the erstwhile Indian State Territories under the merger agreements or covenants. That Article recognises and accepts the guarantee or assurance given by the erstwhile Dominion of India for payment of the sums payable to the Rulers as Privy Purse. Thus the essential character of this payment remained what it was under the merger agreement and did not alter by reason of the guarantee or assurance given by the Dominion of India and later by reason of the recognition of that guarantee under Article 291 of the Constitution.
29. When the Rulers of Covenanting states in Madhya Bharat entered into a covenant for merger they with the concurrence and advice of the Dominion of India saved for themselves certain fixed sums of money and certain other personal rights, privileges and dignities. After the Constitution these savings were recognised and guaranteed without altering their essential character. Since in the initial merger agreement there was no question of any sovereign Ruler or State making an allowance or grant on political consideration to the Rulers of the covenanting States and each one of them was in the same position as others, it was rightly not thought fit to call it a political pension. No one of them was making a grant or allowance to any of them or was in a position to do so. The term Privy Purse was chosen as the sum representing it was intended to provide for the private expenses of a Ruler of an erstwhile State out of the public revenues. Since initially the merger agreement or covenant as well as guarantee or assurance given by the Dominion provided for this payment it was in the nature of right and not a bounty. It retained that character by reason of the Constitutional recognition of the same under Articles 291 and 362.
30. Therefore on broader grounds I am not prepared to hold that the sum payable to Nawab of Jaora as 'Privy Purse' is a political pension within the meaning of Section 60(1)(g) of the Civil Procedure Code.
31. I shall hereafter consider this question on the basis of authorities upon which reliance is placed on either side. Before proceeding to authorities it will be useful to consider the meaning of the term 'Political Pension'.
32. In Wasif Ali Mirza v. Karnani Industrial Bank Ltd.,AIR 1931 PC 160, the Privy Council in the case of WasifAli Mirza Nawab Bahadur of Murshidabad had consideredthis term as used in Section 60(1)(g) of the Civil Procedure Code. Their Lordships observed at page 161:'Their Lordships agree with the view expressed inLachmi Narain v. Makund Singh, ILR 26 All 617, that theword 'pension' alike in the Pensions Act, 1871 (No. 23 of1871) and in the Civil Procedure Code, and their Lordshipsmay add also in the Transfer of Property Act, 1882 (No. 4of 1882), Section 6, 'implies periodical payments of moneyby Government to the pensioner'.
33. Thus according to their Lordships' view the term is used in the same sense in ail the aforesaid three Acts.
34. Now the term Pension as used in Pensions Act, 1871 was considered by a Bench of three Judges in ILR 4 Bom 432 in the case of Secy. of State v. Khemchand Jeychand. While dealing with this term their Lordships observed at page 436:
'The term 'Pension' is not defined in the Pensions Act, nor so far as we are aware, in any other Act. Giving to the word its widest etymological sense, it might be construed as including all payments of every kind and description; but that it must have some much more narrow signification than this, is clear from the circumstance that in the Pensions Act the word is used with, but distinguished from, grants of money or land revenue, and must, therefore, be supposed to denote money payable otherwise than in respect of a right, privilege, perquisite, or office. It is true that the second division of the Act is headed 'rights to pensions' only, although the sections contained in that division deal with grants of money or land revenue, as well as with pensions; but this appears to us to be due merely to the carelessness of the draftsman, and not to affect the general tenor of the Act, which clearly points to a distinction between pensions and all other grants. It follows that, in our opinion, the word 'Pension' in Section 11 is used in its ordinary and well-known sense, viz., that of a periodical allowance or stipend granted, not in respect of any right, privilege, perquisite, or office but on account of past services or particular merits, or as compensation to dethroned princes, their families, and dependants.'
35. This view expressed by the Bombay High Court in ILR 4 Bom 432, was approved by Beckett, J. in AIR 1934 Lah 881, Shiv Narain Singh v. Muni Lal and by Ashworth and Sen, JJ. in AIR 1929 All 781 (786), Bhoopal Rai v. Shiam Sunder Lal.
36. In AIR 1937 Lah 178, Achhru Mal v. Balwant Singh, Addison and Din Mohammad, JJ. seem to have expressed the view that in order to find the true meaning of the term 'Pension' as used in Section 60(1)(g) of the Civil Procedure Code it is not permissible to refer to various provisions of the Pensions Act. But this view does not appear to take account of the view expressed by their lordships of the Privy Council in AIR 1931 PC 160.
37. It therefore follows that the payment of Privy Purse to the Nawab of Jaora which is guaranteed and assured by the Central Government and is charged to the Central Revenue is not a political pension as it is not a periodic payment to deposed rulers by the new sovereign as a bounty or favour. It is in respect of a right saved under the covenant and guaranteed and assured first by the Dominion of India and later by the Constitution. Being a periodic payment guaranteed and assured by Government in respect of a right and privilege, it cannot be called a pension and hence a political pension.
38. Reliance was placed on behalf of the Nawab upon the decisions of the Privy Council in 17 Ind App 181, Bishambhar Nath v. Nawab Imdad Ali Khan and AIR 1927 Mad 604, Satraji Dongarchand v. Madho Singh, and particularly the following observations of the Privy Council in the first case occurring at page 186 of the report:
'It is probable (although the point is not one which it is necessary to determine in this case), that the enactments of Section 266 (g) of the Code were not meant to cover pensions payable by a foreign State, when remitted for payment to their pensioner, in India; but these enactments certainly include all pensions of a political nature payable directly by the Government of India. A pension which the Government of India has given a guarantee that it will pay, by a treaty obligation contracted with another sovereign power, appears to their Lordships to be, in the strictest sense, a political pension. The obligation to pay, as well as the actual payment of the pension, must in such circumstances, be ascribed to reasons of State policy.'
39. The facts of that case were that the last King of Oudh Mohammad Ali Shah advanced Rs. 17,00,000/- to the Government of India which was run by the East India Company of Britain in pursuance of a formal treaty by which the Government of India undertook to apply the interest of that sum in payment to certain members of the Royal Family and household, including his spouse, Malka Jehan. In the treaty these allowances were described as 'pensions' and the grantees were called pensioners. Later Muhammad Ali Shah advanced Rs. 12,00,000/- intending to make additional provision for Malka Jehan and her heirs. Being apprehensive of the fact that the lady or her heirs might under evil advice squander away the money or sell the note if the Government issued a note in her name, he requested the Government of India to pay to her and her issues in perpetuity the interest at Rs. 5 per cent or reduced rate of interest in perpetuity. This was accepted by the Governor-General.
40. Question arose whether it was a pension. It was held that it was so.
41. The reason for taking that view appears to be that the payment secured to Malka Jehan and her heirs by the Ruler to the Queen and her heirs and was intended to augment her pension. Their Lordships actually approve of the view expressed by Sir Barnes Peacock in 16 Ind App 175 (PC), Nawab Sultan Mariam Begum v. Nawab Sahib Mirza, in the same connection. If then it was a pension its nature did not alter by reason of the fact that it was a pension payable by a foreign state to pensioner in India. It was all the same held to be a pension which the Government of India had given a guarantee that it will pay, by a treaty obligation. This obligation and the actual payment in such circumstances were held as ascribable to State policy.
42. The distinction which exists in that case and the present case is that in the former case the grant was a pension by a foreign ruler and its payment was guaranteed by the Government of India due to State policy. In the present case the amount of privy purse was not a gram by a ruler to himself as a pension. But it was in the nature of a right which the Constitution recognised and guaranteed. The decision in AIR 1927 Mad 604 follows the aforesaid case and is distinguishable on almost the same ground. It is no doubt correct as held in that case that if it is a pension the source out of which it might come is not material. 1, therefore, am inclined to hold that the Privy Purse is not a political pension and is attachable. The observations of Chagla, C. J. in (S) AIR 1955 Bom 195 Bhimaji Narasu v. Vijayasinvrao Ramrao, that the Rulers of Indian States as they existed before merger, after they had given up their Rule became practically political pensioners cannot be construed to decide the specific question raised in this case regarding applicability of Section 60(1)(g) C.P.C.
43. For these reasons the view taken by the executing court in the order which is the subject matter of appeal No. 33 of 1958 is not correct and if the decree-holder is otherwise entitled to succeed he can claim attachment of the Privy Purse.
44. The second contention referrable to appeal No. 82 of 1957 is based on the provisions of Section 87B read, with Section 86(1) C.P.C. The contention briefly put is that the appellant Nawab is a Ruler of erstwhile Jaora State and that by reason of Section 87B the provisions of Section 86(1) will apply to him. He can therefore claim the protection or privilege under the latter Section in respect of the present proceeding. The word 'sued' it is urged is not confined to suits which are commenced by filing a plaint but includes any proceeding of an original character which at any rate culminates in a decree capable of being executed. The provisions contained in Section 86(1), it is urged, are imperative and involve a matter of policy and are therefore not capable of being waived. Reliance, in this connection, is sought to be placed upon the decision of the Privy Council in Gaekwar Baroda State Ry. v. Rafiz Habib-Ul-Haq reported in 65 Ind App 182: AIR 1938 PC 165.
45. On the other hand contention raised on behalf of the decree-holder is that the word 'sued' as used in Section 86(1), C.P.C. cannot be said to be used in a wider sense. It will bear the meaning similar in scope as the noun derived from it (namely 'suit') bears both in the same Section and the rest of the Act. Reliance was bought to be placed in this connection upon the decision of the Privy council in AIR 1933 PC 63 Hansraj v. Dehra Dun, Mussoorie Electric Tramway Co. Ltd.
46. Besides these two principal decisions of the Privy Council the learned counsel on either side relied upon several other decisions to which reference hereafter will be made in the discussion that follows.
47. In order to appreciate the entire submissions which were made by the learned counsel en both sides while developing these respective lines of reasoning it will be necessary to refer to corresponding provisions prior to the promulgation of the Code of Civil Procedure Amendment Act No. 2 of 1951 which came into force on 1-4-1951 as also the provisions as they now stand after the Amendment. Prior to Amendment Act No. 2 of 1951 the position was that a foreign State, under Section 84 could sue In any competent court to enforce a private right vested in the Ruler of such State etc. Section 85 authorised the Central Government to appoint agents, at the request of such Rulers of Foreign States for the purpose of prosecuting or defending any suit on behalf of them. Then came Section 86 which is material for our present purpose. It read thus:--
'Any such Prince or Chief, and any ambassador or envoy of a foreign State, may, with the consent of the Central Government, certified by the signature of a Secretary to that Government but not without such consent, be sued in any competent Court.'
48. This provision in the unamended Section applied equally to Foreign Rulers including the Rulers of Indian States.
49. Section 86 as is now amended after Act No. 2 of 1951 reads as follows:--
'No Ruler of a foreign State may be sued in any court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government.'
50. This Section by its own force does not apply to the Rulers of former Indian States. For that purpose Section 87B is enacted which reads as follows:---
'The provisions of Section 85 and of Sub-sections (1) and (3) of Section 86 shall apply in relation to the Rulers of any former Indian State as they apply in relation to the Ruler of a foreign State.'
51. It will be clear by reference to these provisions that so far as the Rulers of Indian States were concerned, prior to amendment before filing any suit against them the consent of Central Government was necessary and further such consent could be given only under certain specified circumstances and not otherwise. There was no difference between them and any other Foreign sovereign. In the Amended provision by reason of the provisions of Section 87B the same privilege is extended to the Rulers of former Indian States as was available to them while they were the Rulers. However no limitations are placed upon the power of Central Government to give such consent in their case as are placed with respect to Foreign Rulers. Thus the powers of the Central Government in granting consent are no longer restricted by any legislative conditions. But it has to be accepted that the consent of the Central Government is necessary. The provision contained in Section 86(1) read with Section 87B C.P.C. is statutory and on the decision of the Privy Council in AIR 1938 PC 165 the privilege or protection under it is not capable of being waived although in the case of foreign sovereigns, the fact that such a sovereign has waived the privilege or protection by expressly or impliedly submitting to jurisdiction may now enter as one of the considerations justifying the grant of such consent.
In the case of a Ruler of a former Indian State since Sub-clause (2) of Section 86 C.P.C. is not made applicable there are no limitations placed by law upon the powers of Central Government as regards the grant of consent and the fact that such a Ruler has waived the privilege by submitting to jurisdiction either expressly or by implication can be taken into account in granting its consent. But although the power of the Central Government in granting consent in the case of the former Indian Rulers, as defined in Section 87B C.P.C., is not apparently cramped by any limitations yet the existence of such a consent is imperative and a condition precedent. The provision being mandatory it cannot be waived. It therefore follows that if other conditions for the applicability of Section 86(1) read with Section 87B C.P.C. are satisfied then the absence of consent is fatal to the proceeding in question, it might be contended that prior to the constitution there might have been public policy involved in the provision regarding consent but after the Constitution there can be no such public policy as the Rulers are nothing more than figure heads with neither any territory nor any jurisdiction or powers over persons or property. The answer to this contention is that the nature of public policy might have altered but there is public policy all the same in securing the solemn guarantees and assurances extended to those Rulers by the Dominion of India and later reaffirmed by the terms of Article 362 of the Constitution which required the legislatures in India to respect the guarantees and assurances given to the Rulers and in pursurance of which provisions under Section 86(1) and (3) read with Section 67-B C.P.C. were enacted. This brings us to the question Whether Section 86(1) applies to a proceeding of arbitration.
52. It is contended by Mr. Sanghi for the Nawab of Jaora that Section 86(1) ought to apply as much to a proceeding of arbitration as it would do to a suit as the term is used elsewhere in the Civil Procedure Code. Ho first suggested that the word to be construed is 'sued' and not suit and it could mean any proceeding of a civil character which exposes the Ruler to an executable decree or order. He further contended that even if the word 'sued' he construed narrowly to mean instituting a civil suit which culminates in a judgment and a decree still the proceeding of arbitration can properly fall within its ambit as even that proceeding culminates in an executable decree being passed and that too as a result of a judgment of a court.
The learned counsel in this connection referred to the definition of the term 'decree' as given in Section 2(2) of the Civil Procedure Code and argued that if there is a decree in these proceedings then it follows that there is formal expression of adjudication which finally determines rights of the parties with regard to matters in controversy in the suit. He therefore reasons that the proceeding is a suit and the person proceeded against so as to be subjected to a liability under such a decree can be said to have been sued. The learned counsel in this connection referred to the decisions reported in AIR 1936 All 826 (FB), Official Liquidators, Dehra Dun Musoorie Electric Tramway Co, Ltd. v. President, Council of Regency, Nabha State, AIR 1940 Lah 164, Arura Vir Singh v. Punjab Zamindara Bank, Ltd., AIR 1930 Cal 258, Provas Chandra v. Ashutosh Mukherji, (S) AIR 1955 Nag: 259 Channulal v. Sharma and Balaram Singh v. Dudh Nath, AIR 1949 All 100. The decisions according to the learned counsel, clearly indicated that the word 'sued' has not to be construed narrowly to mean 'proceeded against by means' of a suit instituted by filing a plaint but should be construed broadly to mean starting a civil proceeding involving an executable decree.
53. I shall presently examine the correctness of these contentions. Now under the International Law, as recognises in English Courts a foreign sovereign has an immunity from being proceeded against in English courts except perhaps where he has waived the privilege of such immunity by submitting to court's jurisdiction and, as appears from the decision In 1924 AC 797 Duff Development Co. v. Kelantan Government, an Arbitration proceeding under English Arbitration Act of 1889 for enforcement of an Award even after the foreign sovereign had submitted to the jurisdiction by invoking the courts' jurisdiction to set aside the award, was held to be a proceeding in which the sovereign was entitled to the immunity. If this Rule of international law were held equally applicable here we would have been constrained to hold that the present proceeding and the decree consequent thereto, is bad. But as held by Chagla, C. J. and Tendolkar, J., in AIR 1956 Bom 45 (47), Indrajit singhji v. Rajendrasinghji, in face of the specific provisions bearing on that subject contained in the Civil Procedure Code
'it would be an unjustifiable attempt on our part to engraft upon the provisions of Civil Procedure Code general principles of international law which the legislature itself did not think it proper to do'.
What we have therefore to consider is the specific words of Section 86(1) C.P.C. in the context and setting in which they occur and then to determine whether the consent of Central Government was necessary for these proceedings.
54. Section 86(1) occurs in Part (IV) which is headed 'suits in particular Cases'. Section 79, which is the first section in this part, says in what name a suit by or against a Government either Central or the State should be filed or in other words how the Government either as a plaintiff or defendant should be named. Section 80 C.P.C. provided for a notice prior to the filing of a suit against a Government or a public servant. Section 81 C.P.C. deals with exemption from attachment, arrest or personal appearance of a public officer while Section 82 deals with the subject of execution of decree against the Government or a public officer. Thus Sections 79 to 82 fall under the heading 'suits by or against the Government or public officers in their official capacity' and the proceeding contemplated therein is a suit i.e. a proceeding instituted by filing a plaint.
The next sub-head under this part is 'suits by Aliens and by or against Foreign Rulers, Ambassadors and Envoys', In Section 83 which deals with suits by alien enemies, the predicate 'sue' is used but the word 'competent to try the suit' indicate that the proceeding contemplated therein is a suit and not any other proceeding. Section 84 deals with suits by a foreign State in any competent court to which Civil Procedure Code applies for the enforcement of a private right vested in the Ruler of the State or any public officer of such State in his public capacity. Section 85 empowers the Central Government to appoint a person or persons to prosecute or defend suits at the request of the Rulers or their nominees in that behalf. Then comes Section 86 which deals with the suits against Foreign Rulers, Ambassadors or Envoys and provided for a fetter against such suits in the shape of the consent of the Central Government, which could be granted under some specified conditions laid down in Sub-section 2 of that section. The next sub-head of Part IV is 'Suits against Rulers of former Indian States' and Sections 87, 87A and 87B provide in their case that the provisions of Section 85 as also Section 86 (1)and (3) will apply in relation to 'The Rulers of former Indian States' as defined therein as they do in relation to a Foreign State.
55. Thus considering the provisions contained in the whole of Part IV it is clear that the said provisions deal with 'suits' strictly so called in the Civil Procedure Code and not with any civil proceeding. Even examining the wording of Section 86 C.P.C. it seems that although the word 'sued' is used in the early part of the Section the words which follow namely 'competent to try the suit' indicate that the proceeding indicated by the predicate 'sued' is nothing else than a suit. As regards the meaning of the term 'suit' although the word is not defined in the Code there, are clear indications therein as to what is meant by it. Section 26 C.P.C. lays down that a suit is instituted by presentation of a plaint or in such manner as may be prescribed either by the second (sic) schedule of C.P.C. or under the rule making power under Sections 122 and 125 C. P. C. Order 4, Rule 1 tells us that a suit is instituted by presentation of a plaint which complies with formalities contained in Rules as Said down in Orders VI and VII and which is presented to a court by a suitor called plaintiff. Thus the term 'suit' as used in the Civil Procedure Code has a definite meaning and each and every civil proceeding whether commenced by means of an application or otherwise does not ordinarily become a suit for the purpose of the Code. Their Lordships of the Privy Council, while considering the question with reference to Section 3 of Limitation Act when that question arose in connection with Section 186 of the Indian Companies Act (1913) observed :--
'Suit ordinarily means and apart from the context must be taken to mean a civil proceeding instituted by presentation of a plaint.'
56. This view of their Lordships is applicable with greater force where we are to consider the meaning of the, term with reference to a provision contained in the Civil Procedure Code itself since the meaning which their Lordships attached to that term is derived from the provisions of the Code itself.
57. In the decision reported in AIR 1930 Cal 258, relied upon by Mr. Sanghi the question arose what is meant by the term 'suit' as used in Clause 12 of Letters Patent. Page, J. relying upon the decisions in ILR 22 Mad 256, Venkata Chandrappa v. Venkatarama Reddi, ILR 29 Bom 249, Vaghoji Kuverji v. Camaji Bomanji and AIR 1927 Cal 281, Pran Kumar Pal v. Darpahari Pal, held that a proceeding which is commenced by taking out an originating summons supported by an affidavit is a suit within the meaning of the term as used in Clause 12 of Letters Patent. The question was material for consideration since if the proceeding was a suit it would be incompetent in the absence of leave or submission to jurisdiction, as the property which was the subject-matter of the proceeding was partly situated outside the jurisdiction of the court. Their Lordships in that case were required to determine the meaning of the term as Lined in Clause 12 of Letters Patent having regard to the provisions contained in the High Court Rules Chapter 7 Rule 1 and Chapter 13 Rules 1 and 14. The decision therefore cannot be an authority for the proposition that any civil proceeding will become a suit for the purpose of Section 85 or 87B, C. P. C.
58. The next case to be considered is AIR 1936 All 826 (FB). In that case a question specifically arose as regards the applicability of Section 86 C.P.C. to the proceedings under Sections 184, 186 and 187 of the Companies Act. In that case the Maharaja of Nabha had purchased a Large number of shares in the Dehra Dun Mussoorie Electric Tramway Co. Ltd., and had paid a large sum of money in cash, but a small balance of Rs. 20,000 had remained outstanding as the unpaid balance on account of those shares. The Liquidator applied to the Company Judge for the early settlement of the list of contributories and for a direction to the Nabha Darbar to pay to the Official Liquidator the sum of Rs. 19,240-15-3 as the balance outstanding from the Maharaja, When the matter came up for hearing on a preliminary objection raised on behalf of the Nabha Ruler that the proceeding was Incompetent in the absence of the consent of Governor General-in-Council under Section 86 C.P.C. it was held by the Full Bench consisting of Sulamian, C. J., Thom and Iqbal Ahmad, JJ, that there is a statutory duty imposed by law upon the court dealing with a company matter regarding liquidation that 'as soon as may be after making a winding up order it shall settle the list of contributories.' This duty, it was pointed out did not depend upon any application by the liquidator.
Rules 54 and 55 of the Rules under the Companies Act were referred to in this connection. Under those rules a liquidator is required to file a tentative list of contributories after examining the material documents of the company and to obtain an appointment by the court to settle the list of contributories. The liquidator is in duty bound to give notice of such appointment to the persons included in the list. The persons objecting to the inclusion of their name or the amount specified against them are beard and the final list is settled. It was held by the Full Bench that the court In this proceeding to determine the objection is not starting any suit analogous to that started by a private litigant and no consent of the Governor-General-in-Council under Section 86 C.P.C. therefore would be required where the contributory proceeded against is a Ruler of an Indian State. The Full Bench however held that so far as orders under Sections 186 and 187 of the Companies Act are concerned since the proceeding partakes the character of a suit by reason of Section 141 C.P.C. ill would be incompetent in the absence of a consent of the Governor-General-in-Council.
59. This last mentioned view of the Full Bench of the Allahabad High Court was emphasised by mr. Sanghi in view of the provision of Section 41 of the Arbitration Act and Section 141 C.P.C. It was contended that. Section 85 will apply not only to suits strictly so called but to all proceedings to which the procedure of suits will apply either by reason of Section 141 C.P.C. or because of specific provisions of any other Act.
60. In this connection it is pertinent to refer to the case reported in AIR 1940 Cal 244, Marian Lal v. Reza Ali Khan. In that case the question was whether the provisions of Section 86 C.P.C. were applicable to a proceeding under the Insolvency Act where a Ruling Prince was one of the creditors, it was held on elaborate review of authorities that the Section has no application as the proceeding before the Insolvency Court was not a suit, started on a plaint being presented and that even on the conjoint effect of Section 5 of the Insolvency Act which made the procedure of suits applicable to proceedings in insolvency and Section 141 C.P.C. all the provisions of the Civil Procedure Code including Section 86 are not attracted. The Provincial Insolvency Act it was held authorized the insolvency Court to give notices of the date of hearing of a debtor's petition to all the creditors whether they be Ruling Princes or Chiefs or not. It was further held that the provision contained in Section 86 is not a matter of mere procedure but is one of substantial right.
61. The next important case to be considered is that reported in AIR 1956 Bom 45. The question there was regarding the applicability of Section 87B, C. P. C. to the proceedings started by means of a petition for the grant of Letters of Administration which are converted into a suit under Rule 692 of the Bombay High Court Rules. In that case Maharaja Rajendrasinghji, who was the former Ruling Prince of the erstwhile State of Rajpipla filed a caveat after the citations were served upon him on a petition filed by one Indrajitsingh. An affidavit was filed in support of the caveat and it was converted into a suit under the Rule afore-said. At the hearing objection was taken under Section 87B of C. P. C. on behalf of the Maharaja that the petition was incompetent in the absence of the consent of Central Government. In the argument addressed before the learned Judges Chagla, C. J. and Tendolkar, J. principle of International Law referred to in Diecy's conflict of Laws to the effect that a court has no jurisdiction to entertain an action or a proceeding against a foreign sovereign was sought to be invoked and it was contended that no distinction can be made in this respect between a suit and any other civil proceeding.
Their Lordships did not accept the contention. According to them the statutory provision contained in Section 86, C. P. C. is a departure from the principles of International Law as a foreign sovereign can be sued in India with the consent of the Central Government. It was also pointed out that whereas under the International Law a foreign sovereign can waive the privilege, the consent required under Section 86, C. P. C. being mandatory in character and based on public policy as held by the Privy Council in AIR 1938 PC 165 (169), cannot be waived. The general principles of International Law as recognised by English Courts, therefore, were held to have no application and that what was material was the actual provisions of the statute. Their Lordships expressed disagreement with the view of Allahabad High Court in AIR 1936 All 826 (FB) for the following reasons :
'If the view of the Allahabad High Court was right that Section 141 applied all provisions of the Code to proceedings in Court, then there seems to be no reason in principle why a distinction should have been made between proceedings under Section 184 and proceedings under Section 186 or Section 187. But this view of the Allahabad High Court with regard to the applicability of Section 141 is clearly in confict with the decisions of several other High Courts.
It has been held that the provisions with regard to appeals which are to be found in the Civil Procedure Code do not apply to proceedings by virtue of Section 141, and the reason for this decision is that the right of appeal is a substantive right and Section 141 does not deal with substantive rights.
If the provisions with regard to appeals do not fall within the ambit of Section 141 because they deal with and confer substantive rights, then, in our opinion, by parity of reason, Section 86 also cannot fall within the ambit of Section 141 because it deals with substantive rights and confers substantive rights upon Rulers of Foreign States.'
62. The question regarding the applicability of Section 86, C. P. C. to proceedings under Sections 184, 186 and 187 of the Companies Act was considered by me sitting singly as a Judge exercising company jurisdiction in Civil Misc. Case No. 1 of 1950 (MP), In the matter of liquidation of Vikram Sugar Mills, where I have agreed with the reasoning of the Bombay High Court in the aforesaid case, I stick to it.
63. The Full Bench decision of the East Punjab High Court in AIR 1950 EP 111 (FB), Bhagwanti v. New Bank of India, Ltd., indicates that all the provisions of the Civil Procedure Code are not attracted for a proceeding under Section 153 of the Companies Act including those under Order 14 Rule 6, Section 90 and Section 36, C. P. C. by reason of Section 141, C. P. C.
64. The next important case to be considered is the one reported in (S) AIR 1955 Nag 259. In that case the question which the Division Bench consisting of Hidayatullah, C. J. and Mangalmurti, J. had to consider was whether, when a pauper files an application to sue in forma pauperis, he really commences a suit so as to attract the application of Order 39, Rule 1, C. P. C, even before he succeeds in establishing his pauperism. Their Lordships: referred to and relied upon the decision in 6 Ind App 126. (PC), Stuart Skinner v. William Orde, as also the decisions in AIR 1943 Bom 143, Totaram Ichharam v. Dattu Mangu and AIR 1939 Mad 80, Chidambaram v. Nataraja Mudaliar, and expressed their disagreement with the Full Bench view of the Allahabad High Court if AIR 1936 All 584 (FB), Chunna Mal v. Bhagwant. The main reasoning which impressed their Lordships is that a suit is instituted as provided in Section 26, C. P. C. by presenting a plaint to a court or in such other manner as may be prescribed.
Order 33, C. P. C. is such a prescription according to them since an application for permission to sue as a pauper is required to fulfill all the requirements of a plaint and is to be presented to the court to which duly stamped plaint is to be presented. During the time the pauperism is being enquired into, according to them, there is still a plaint but insufficiently stamped and when the pauperism is established it becomes a plaint without such defect. But all the same it is a plaint. This decision of the Division Bench of this court binds us and we have to take it that so far as the special cases of pauper suits are concerned a suit is instituted by the presentation of a pauper application. But the decision is by no means an authority for the general proposition that any civil proceeding which culminates in an executable decree or order is a suit.
In AIR 1940 Lah 164, a case is reported wherein the question arose regarding applicability of the provisions of Order 32, Rule 5, C. P. C. in connection with the proceeding consequent upon an award, it was held in that case by Abdul Rashid, J. that such a proceeding falls within the category of a civil proceeding within the meaning of the term as used in Section 141, C. P. C. and the provisions of Order 32, Rule 5 are attracted and consequently where a minor is proceeded against and a decree is obtained against a minor without notice to him it is a nullty. The decision is an authority only for the proposition that the proceeding consequent upon the presentation of an award by an arbitrator is a Civil Proceeding to which Section 141, C. P. C. is applicable and consequently the procedure of suits as provided in the Code shall, as far as it can be made applicable, be followed. It has a reference to procedural part of C. P. C. and consequently it cannot apply where the provision in question deals with a substantive right of a party.
65. In AIR 1949 All 100, Malik, C. J. and Bind Basni Prasad, J. had to consider the question whether the proceeding under Section 12 of U. P. Agriculturists' Relief Act, is a suit within the meaning of the term as used in Section 21 of the Arbitration Act. It was held that it was. Their Lordships have emphasized the words 'in such manner as may be prescribed' in Section 26, C. P. C. which speaks of how a suit is instituted. But to my mind the word 'prescribed' under Section 26, C. P. C. has a definite meaning. It means as prescribed by the Rules as contained in second schedule of C. P. C. or as made in pursuance of powers under Sections 122 and 125, C. P. C. If that is the correct position the strength of the reasoning employed in that case is weakened. It was contended in that case that the provisions in para 1 of Schedule II, C. P. C. conferring right upon a party to refer a dispute in a pending action to arbitration is a matter of substantive law. This contention was repelled by Bind Basni Prasad, J. by holding that it is a matter of procedure. In view of the last mentioned distinction the case is inapplicable.
66. Thus the decisions in AIR 1940 Cal 244, andAIR 1956 Bom 45 take the view that the provisions contained in Sections 86 and 87B, C. P. C. are those relatingto substantive law and not mere matters of procedure soas to attract their application by reason of Section 141,C. P. C.
67. Reference was also made by the learned counsel for the Nawab to the decisions of the Supreme Court in AIR 1950 SC 222, Province of Bombay v. Khushaldas, and particularly the observations of Mahajan, J. in para 51 and of Mukherjee, J. in para 124, where their Lordships considered the scope and significance of the word 'sue' as used in Section 176 of the Government of India Act 1935, and expressed the opinion that it connotes the enforcement of a claim or civil right by means of a legal proceedingand is not confined to a proceeding which must begin with a plaint and end in a decree.
68. There may be good reasons for their Lordships to hold that the word 'sue' as used in Section 176 of the Government of India Act, 1935 has a wider import but it is not proper to extend that view of their Lordships to the provisions of Sections 86 and 87B, C. P. C. where the word is meant in the sense of institution of a suit, the latter expression having a meaning as indicated in the Civil Procedure Code.
69. Mr. Sanghi contended that in construing the words of Sections 86 and 87B, C. P. C. it has to be seen how do they best harmonise with the object which the Legislature has in view and not whether they accord with the grammatical or etymological propriety of the language nor even with the popular use of them. The main importance ,is to be given, according to the learned counsel upon the subject, occasion of the use of the words and the object which they are meant to achieve. Reference in this connection is made to the decision of the Supreme Court in AIR 1958 Supreme Court 353 Workmen of Dimakuchi Tea Estate v. Management of Dimakchi Tea Estate. Those observations may be applicable in those cases where the words are ambiguous in import. Such is not the case here.
70. Mr. Sanghi also contended that since in the proceeding consequent upon the award of an arbitrator there is judgment and decree the proceeding should be taken to be suit. But this view overlooks one aspect of the matter namely it should commence by filing a plaint. In the case of an award given by an arbitrator there is no plaint containing allegations as regards a claim or a civil right but the decision of a private tribunal, it is commenced not by a claimant filing a plaint in a court but by the arbitrator filing an award. Before making it a rule a certain procedure is followed and certain objections confined within limits indicated in the Act are to be considered and then a judgment and decree is to be passed so as to make the award a rule of the court but for that reason it does not become a suit strictly so called. Although there may be a judgment and decree there is no filing of a plaint and no question of obtaining the required consent of the Central Government to be obtained by a plaintiff before filing his plaint.
71. It may then be contended that if it is assumed that Sections 86 or 87B, C. P. C. have no application to a proceeding consequent upon an award then the general principles of International Law should be applied and a foreign sovereign cannot be proceeded against at all. But in the present case even that position is untenable as, if the general principles regarding immunity of a foreign sovereign is to be held applicable, principle of waiver or privilege of that character is equally attracted and since in this case the Nawab has specifically waived that privilege the immunity cannot be claimed. I would therefore hold that the proceeding is not vitiated during the stage prior to the passing of the decree on the basis of the award in this case due to absence of the consent of the Central Government. Subsequent to the decree such consent is obtained if it be considered necessary.
72. The next contention is as regards the effect of non-registration of the award. The contention of the learned counsel Mr. Sanghi in this regard is that the award is invalid and no decree can be passed thereon as the award deals with immoveable property and provides for the continuation of the charge upon immoveable property in the case of secured debts until the amount is realised and also provided for the recovery of the amount by the sale of moveable and immoveable property. The learned counsel relied upon the decision reported in AIR 1939 Nag 233 (FB), Md. Azizullakhan v. Md. Noorullah Khan; AIR 1946 Nag 311, Uttamchand Motilalji v. Wasudeo Deorao and AIR 1945 Cal 19, Nani Bala v. Ram Gopal, in this connection.
73. In AIR 1939 Nag 233 it is held by the Full Bench 'there is no law which requires an award to be registered before it can operate as an award as the Transfer of Property Act requires the registration of sales and mortgages dealing with the property of the value of Rs. 100 or more. An unregistered award is therefore not invalid for all purposes. The only drawbacks attached to it are those mentioned in Section 49, Registration Act, that is to say it cannot be used to affect any immoveable property compressed therein and it cannot be received as evidence of any transaction affecting such property. In AIR 1946 Nag 311, it is held that an award creating a charge on immoveable property is compulsorily registrable. In AIR 1945 Cal 19 it is held that if ah award which affects Immoveable property of Rs. 100 or more is applied to be tiled proper order is one of dismissal in case the awad is unregistered.
74. Now in this case the award is assailed for its non-registration on two grounds. Firstly it is said that it provides that the mortgage charge in the case of secured debts shall continue until the realisation takes place and that the Nawab will have no right to transfer the same. Secondly it is said that the award provided for the realisation of the dues out of the moveable and immoveable property of the debtor.
75. As regards the first the term in the award regarding continuance of charge until realisation, merely refers to the factual position with reference to the rights of the parties under duly registered mortgages and it does not by its own force affect immoveable property of Rs. 100 or more.
76. The decision in AIR 1947 PC 117, Lahore Central Co-operative Bank, Ltd. v. Qadir Bux, is a complete answer to both the grounds of objection pertaining to non-regisrtration. in that case a dispute between a mortgagor and a mortgagee was referred to arbitration. The Arbitrator made an award whereby he ascertained the principal amount of the mortgage debt carrying interest at the rate agreed in the Mortgage Deed. It was provided in the award that the debt was to be paid by instalments and on failure to pay any one instalment the whole sum was to be immediately payable. This provision was followed by the following words viz; the amount may then be realised through a civil court by a sale of the mortgaged property of the debtor or any other property'. It was on these facts held:
'The provision dealing with realisation follows and it is to be read in light of the whole award, and the word 'then' appearing in it closely connects it with the preceding part of the clause. So regarded the provision appears to their Lordships to be pointed only to stating as an existing fact the general consequences which by law were attached to non-payment of the secured debt. It has no operative effect in creating any interest in any immoveable property. In truth the statement is little else than a warning.'
77. in the present case the statement that burden of mortgage would continue until satisfaction is no more than the statement of the factual position as it exists apart from the award. Had it provided otherwise there may be perhaps some difficulty. As regards the statement regarding realisation that too is nothing more than the statement of existing fact and of general consequences which by law are attracted. There is therefore no substance in this contention as well. What is said above answers point No. VIII as well as noted at page 10 (sic) above.
78. This disposes of all the three principal contentions raised in this case. There are some minor contentions raised in these appeals.
79. The first of them is that the award accelerated payment of the amounts which had not become due and hence went beyond the scope of reference. I do not think there is any force in this contention. It is open for the parties to enter into an agreement whereby they chose to appoint an arbitrator and confer upon him authority to determine the liability of the debtor and to prescribe the mode of its realisation. The agreement would neither be bad nor illegal simply because some of the debts had hot become due. The parties may think it proper that all the existing dues might be settled once and for all and the debtor might be told how he is to pay. Such was the case in this case. The agreement of reference stated that the arbitrator should go through the accounts of the parties as also the documents and give an award and mention therein the manner of its repayment. The total liability of the debtor having been determined irrespective of the due dates of payment the arbitrator thought it fit to afford facility of instalments to the debtor and also to indicate the source out of which the money would ordinarily come. The last provision was merely directory and in case of any failure or departure from that mode of payment other method of realisation was indicated.
80. In my opinion in such a circumstance it cannot be said that the arbitrator had acted beyond the scope of reference. If some of the debts are accelerated, some are delayed. The whole thing was left to the discretion of the arbitrator and there is no material to hold that he did not act bona fide.
81. The next contention raised is that the decree passed in this case is not in accordance with the award but in accordance with the compromise. The court, it is said, has no jurisdiction to pass any decree except one in accordance with the terms of the award. The provisions of Order 23, Rule 3 have no application to proceedings in arbitration.
82. This contention also has no force. By Section 41 of the Arbitration Act provisions of Civil Procedure Code, 1908 are applicable to all proceedings before the court and to all appeals under the Act. In AIR 1948 Sind 74, Motandas v. Wadhumal, no doubt a view is expressed against the applicability of Order 23, Rule 3 to the proceedings in arbitration after the award is made. But that decision is based on the decision in AIR 1937 Cal 201, Brindaban Chandra v. Kashi Chandra and AIR 1924 Cal 722, Dooly Chand v. Mohanlal. The decision in AIR 1946 Cal 427, Prafulla Chandra v. Panchanan, is also in accord with this. Contrary view is taken in AIR 1945 Pesh 41, Attar Singh v. Bishan Singh; AIR 1914 Lah 313, Mt. Sohamari Bai v. Chatta Ram; AIR 1921 Lah 34, Dwarka Das v. Krishan Kishore; AIR 1922 Oudh 189, Hakim Fazal Ahmed v. Enayat Ahmed and AIR 1927 Lah 156, Mt. Aishan v. Abdulla. Considering the matter on principle there appears to be no reason whatever for the view that after the parties have referred their dispute to an arbitrator of their choice and he had given his award, if the parties raise some dispute before the court against it being made a rule of the court, the parties cannot enter into amicable settlement of that dispute by means of a compromise at any rate within the four corners of Order 23, Rule 3, C. P. C. Section 41 of the Arbitration Act provides by Sub-clause (1) of the Section for the application of Civil Procedure Code to all proceedings before the court under the said Act. There is no doubt that the proceeding consequent upon filing of an award is one under the Act. Order 23, Rule 3 therefore will apply in terms to such a proceeding.
83. Even before the passing of the Artitration Act a view was entertained as appears from the decisions in AIR 1922 Oudh 189; AIR 1914 Lah 313, AlR 1921 Lah 34, that after the award is given it is open for the parties to amicably settle their dispute covered by the award and substitute a modified formula of their rights and obligations. Section 41 of the Arbitration Act of 1940 makes the matter clear beyond doubt. The Sindh decision relies upon the Calcutta decisions reported in AIR 1937 Cal 201 and AIR 1924 Cal 722. The reasoning in AIR 1924 Cal 722 is put thus:
'The argument presented on behalf of the respondent is that the matters in dispute in this suit were referred to arbitration; that reference has never been superseded, and under those circumstances, it is not competent to the court to record the terms of compromise.'
The reasoning in AIR 1937 Cal 201, employed by the learned Judges is that after a dispute is referred to Arbitration and an award is made the only form which a decree should take in such a case 'was an order that the award should be filed' and that 'as the parties obviously did not join in praying that the application should be dismissed it was the duty of the Judge to consider whether the award should be filed' or not. The reasoning seems to be that unless the court sets aside an award or sees cause to remit it he cannot deal with the award otherwise than by passing a Judgment and decree according to its terms and he has no jurisdiction to modify the same even if parties agree. The question in that case arose in connection with Section 115, C. P. C. where the court had passed a decree in terms of the award without giving effect to a compromise said to have been arrived at by the parties after the award was made. There is not much of discussion as to why the parties cannot amicably compromise their dispute even after the award is made and the proceeding consequent upon production of the award before the court are pending.
The reasoning in AIR 1924 Cal 722, indicates that where there is reference to arbitrators and the same is not superseded the Courts' power to deal with the matter is suspended and it cannot record a compromise in face of the reference. That situation does not arise in this case since the arbitrators had finished their work and the award had been made and filed in court.
The reasoning which deserves to be noticed is one in AIR 1946 Cal 427, since that case takes into account the provisions of the Indian Arbitration Act of 1940. It is held in that case that the operative part of Section 41, Arbitration Act is prefaced by the words 'subject to the provisions of the Act', that therefore the Code of Civil Procedure is applicable only subject to the provisions of Sections 23(2) and 32 of the Arbitration Act and that since those provisions forbid interference with reference and award save as provided in the Act, the application of the Code of Civil Procedure is excluded to that extent. We are in this case not concerned with Section 23(2) of the Artitration Act as the arbitration in this case is not with reference to a pending suit. Section 32 of the Arbitration Act is as follows :
'Notwithstanding any Saw for the time being in force, no suit shall lie on any ground whatsoever for decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act.'
84. It is clear from the heading of the section and the terms thereof that the object of it is to provide for a bar to a suit contesting arbitration agreement or award. The section cannot be read to mean that an award cannot be modified even with the agreement of parties after the same is made at least within the four corners of Order 23, Rule 3, C. P. C. The words 'nor shall any award be set aside, amended or modified or in any way affected otherwise than as provided in this Act' only means that any court not acting in a proceeding under the Arbitration Act cannot set aside, amend, modify or in any way affect the award whether such a move is taken by a party as a plaintiff or as a defendant in a separate suit. Where the court is seized of a matter after the award is filed in exercise of its jurisdiction tinder the Act there is no reason why that court cannot take into account the compromise mutually arrived at by the parties subsequent to the award and before the same is made the rule of the court. The provisions in Section 32 of the Act cannot be read as excluding jurisdiction even of the court acting in a proceeding under the Act. That Section really has a reference to a court acting otherwise than under the Act.
Examining the question on broad grounds it appears that when even a solemn decree passed by a court after full contest can be modified in a manner so that the judgment-debtor is given further facility of making payment of the decretal amount by easier instalments as held by the Privy Council in AIR 1939 PC 80, Oudh Commercial Bank Ltd. v. Bind Basni Kuer, there is no reason why this cannot be done subsequent to an award which at the most is a decision of a private tribunal. The following observations occur in the 1957 edition of the work of Russell on Arbitration at page 277:
'Partners, owing to disputes, agreed that one should retire and receive whatever an arbitrator should award. An award was made of a certain sum payable by instalments. Default was made in payment of the first instalment, the parties then agreed by parol on a less sum. Held in an action on the award that the parol agreement might be pleaded as accord and satisfaction : Smith v. Trowsdale, (1854) 3 E and B 83.'
85. These observations are based on an old English case reported in (1854) 3 E. and B. 83. They support the above reasoning.
86. There is another aspect to the question. Assuming that the compromise could not have been given effect to by the court that would not render the award invalid and since this court is hearing appeal against the judgment and decree in the proceeding consequent upon the award it can do what the trial court had done and pass a decree as per terms of the award. That would hardly benefit the appellant Nawab and will be beneficent to the decree-holder.
87. I am however of the view that the power to give effect to a compromise is not excluded by Section 32 of the Act. Under the circumstances of the case this view is in accord with the decision reported in AIR 1945 Pesh 41 and other decisions noted above. That contention must therefore also fail.
88. The last and the remaining contention is that the Ratlam court had no jurisdiction to entertain the proceeding as part of the property was situated in the District of Indore.
89. This contention too has no force. In the first place the contention cannot be raised in appeal as the matter is covered by Section 21 of C. P. C. There is nothing to show on account of the filing of the award in the Ratlam Court there is consequent failure of justice. In the second place before the Ratlam Court all objections were withdrawn on behalf of the Nawab and the judgment and decree, in terms of the compromise arrived at by the parties, were passed. Ratlam Court too had evidently jurisdiction as part of the property was situated in that District. I would therefore reject that contention also. 90. For all these reasons appeal No. 33 of 1958, preferred by the creditor Sagarmal is allowed and it is held that process of attachment can properly be levied against the Privy Purse of the judgment-debtor as per terms of the decree in this case. Appeal Nos. 81 and 82 of 1957 land No. 13 of 1959 preferred by the Nawab Usmanali Khan of Jaora are dismissed. Creditor Sagarmal is entitled to costs in all these appeals from the opposite party namely Nawab Usmanali Khan S/o. Nawab Iftikharali Khan, Nawab bf Jaora.
91. I agree with the findings and conclusions of my learned brother. The grounds most strenuously urged on behalf of the Nawab in all these proceedings are two firstly, that the 'privy purse' granted to the Nawab under the Constitution in accordance with the Covenant creating the United State of Madhya Bharat, is really a political pension, and as such, immune from attachment; under Section 60(1)(g) of the Code of Civil procedure secondly, that under Section 86(1) of the Code, read with Section 87B, the Civil Courts had no jurisdiction to entertain the application to file the award; and this being a privilege thai cannot be waived, the proceedings are void ab initio. On these two problems my approach is slightly different from (though my conclusions are identical with) those arrived at by my learned brother, and it is therefore necessary to note the reasoning briefly.
(i) Whether the privy purse granted to a Ruler under Article 291 of the Constitution is a political pension:
92. Obviously, the position taken on behalf of the Nawab is not logical. After all, the annual payment by Government to the Nawab which, for convenience is split up into quarterly instalments, has been described as a 'Privy Purse', not only in Article 291, but also in the Covenant, and in fact, in every one of the formal State Papers referring to this payment. In none of them is the word 'Pension' used, which means that the phrase 'Privy Purse' presenting a concept somewhat new to the Indian context, has been used with a definite purpose. To be sure, the term 'pension' has been used in our earlier enactments (as the Pensions Act 23 of 1871, the Civil Procedure Code) and has been interpreted by law courts right down from, ILR 4 Bom 432. But before any attempt is made to claim the immunity from attachment given to pensions, to the Privy Purse as well, one has to establish beyond doubt, either that both the terms have been used indiscriminately to denote the same thing, or, 'pension' is a genus and 'privy purse' like a political pension is a specie within that genus.
93. The fact that all the State Papers concerned have sedulously avoided the term 'pension' and used only the term 'privy purse' shows clearly that these terms have not been used indiscriminately. Nor is there a single authority placed in support of the other alternative that 'privy purse' is a specie within the genus 'pension'. The attempt to derive support for this from (S) AIR 1955 Bom 395 is almost fatuous. There the real question was, whether the Rulers of Indian States, that is, those who had signed an agreement as mentioned in Article 295, and who have been recognized by the President as Rulers, could properly be considered as a separate class for the purposes of Articles 13 and 14 of the Constitution. The court held that the classification was proper and reasonable. However, while summarizing the historical events, the Chief Justice who wrote the judgment, has observed:
'...these Rulers at one time exercised absolute power over their States and they had great prestige, dignity and personal privileges. They gave up their States, they gave up their rule, joined the Union of India, and for all practical purposes became political pensioners.'
This was only a manner of saying and does not at all lead to the inference that the 'privy purse' is a political pension. In fact, that was not the question in that case.
94. Though the term 'pension' has not been defined,its connotation has been set out in the decision in ILR 4Bom 432 and has been accepted practically unanimously byall our High Courts. Occasionally, there have been rathergeneralized statements, but generally the pension properhas been held to be
'a periodical allowance or stipend granted not in respect of any right, privilege, pre-requisite or office, but on account of past services or particular merits, or as compensation to dethroned princes, their families and dependents'. Pension on account of past services is too well known to call for any further discussion. Almost equally well known are pensions for particular merits in some field or work, literature and the like. The category nearest to a privy purse, but as I shall presently point out -- altogether different its essence, is pension 'as compensation to dethroned princes, their families and dependents'.
All over the country, we have even now hundreds of families receiving periodical payments or assignments of land revenue because their ancestors had been rulers or chieftains. In their time, and had been dethroned or removed by the East India company or the British Government.
Occasionally, one even comes across the descendants of chieftains who had been defeated and removed by the pre-British Rulers, and whose pensions had been maintained by the Britishers and after them, by the new Indian Government. In all such cases, the basic fact is one of sub-ordination on the part of the grantee or his ancestors and an act of grace or policy on the part of the grantor. The grantee being a ruler or chieftain defeated in battle or surrendering his rights at discretion, without any conditions, or his heir or dependent, is really not entitled to anything. However, the victor or the suzerain, either on humanitarian or policy considerations that the defeated or dethroned rulers or their dependents should not be turned into absolute beggars, grants payment or assignment of revenue. It is not the periodicity of the payment or its coming from a government and being received by a subject that is the real criterion. The real criterion is the nature of the relationship between the grantor and the grantee as such and the purpose behind the grant.
95. The case of Malika Jehan which went to the Privy Council, 17 Ind App 181, is a clear one to the point. Apart from the attendant circumstances, which are really of no consequence in this connection, the Nawab of Oudh wants to make a provision for the members of the royal family and in particular, his wife Malika Jehan. In other words, the sovereign ruler is making arrangement for the comfort and security of his relations and their descendants. Actually, he brings it about by investing a large sum of money with the East India Company with a condition that they should make a payment in perpetuity at the rate of 5 p.c.p.a. on the principal, in this regard the East India Company was no more than a banker or an insurance agent taking a deposit as the price of an annuity. The grantor is the Ruler, and the grantee or grantees are his dependants, the purpose being to provide for those for whom the Ruler has got affection. This certainly is a pension. Subsequent events apparently complicated the matter because the East India Company disappeared and the Government of India took its place.
As the successor of the East India Company, the Government of India decided to honour all its commitments and continued to make the payment. It is almost as it the liquidator or receiver of a bank continues to make payments; but it was not a grant by the Government of India to the descendants of the Nawab; it was a grant by the Nawab himself to his dependents in the form of an annuity payable by the East India Company which itself was being continued by the successor to the East India Company, namely, the Government of India. The distinctive feature here is that the United State of Madhya Bharat or its Rajpramukh was not providing on its own initiative any pension to the Nawab of Jaora, nor was the Union of India when the constitution came into force, guaranteeing such a payment. The United State of Madhya Bharat was accepting in the Covenant a limitation placed by the Nawab on the extent of the surrender of his sovereign powers. The limitation is contained in Article 11 of the Covenant and is now being honoured as mentioned in Article 291 of the Constitution by the Government of India. Principles exactly similar to those of the Malika Jehan's case, 17 Ind App 181 (P C), govern the other pensions that have come up for consideration before the Courts from time to time, such as those payable to the Murshidabad and the Nabha Rulers and considered by the Privy Council land the Madras High Court respectively.
96. The 'privy purse' is a concept though comparatively new to Indian law, very well known in European history and is almost as old as the Roman Emperors. In English Constitution, 'Privy Purse' is a part of the Civil list. The civil list itself is a grant made by the Parliament as a provision for the honour and dignity of the Crown and the royal family. It is the amount set apart in the Civil list for the private and personal use of the sovereign. In fact, it is instructive to compare this amount set apart for the private and personal use of the sovereign, i.e. the 'privy purse' with the civil list 'pensions' of the past, which were grants made out of the civil list to various dependents. The first is a privilege of the sovereign, while the second is a grant by the sovereign to somebody occupying a subordinate or dependent position. As time went on, these pensions were taken out of the civil list and now the so-called 'civil list pensions' are being granted by the sovereign on the advice of his ministers. Still, they continue to be pensions properly so called, as distinct from the privy purse.
97. When the United State of Madhya Bharat was constituted by Covenant, no ruler was defeated or dethroned. No ruler was deprived of his sovereign powers, in view of certain circumstances, every Ruler gave up quite a good portion of his sovereign powers to the United State which in its own turn merged into the Union of India. Immediately, we are not concerned with the latter process; but with the former process -- a voluntary surrender with a slight (but still very real) limitation. The rulers still retained a modicum of those powers to the extent set out in the Covenant (Articles 11 and 13). They still make it a point to reserve to themselves the 'right' to receive annually certain amounts set out in the schedule, for their 'privy purse'. Another comparison can bring out the distinction most clearly. When the armies of the East India Company defeated the Peshwa, he surrendered at discretion and was granted on grounds of humanity and policy ten lacs of rupees per year. This was a pension. But the Nawab of Jaora was not defeated by the United State of Madhya Bharat or as for that matter, by the Union of India, He united with his brother Rulers, as the process of union surrendered part -- in fact much the larger part -- of his sovereignty and retained a small modicum: and the privy purse is part of that modicum. He became, 'for practical purposes, may be a pensioner;' but for the real constitutional purposes something quite different, namely, one retaining a small residue of his sovereign power.
98. Once this is grasped, the basis of Article 291 or for that matter, 362 is almost obvious. The Ruler's sovereignty has, for the most part -- but not completely --gone into the United State of Madhya Bharat by a process of voluntary surrender and not defeat or dethronement, and the latter political entity merges into the Union of India. It is expressly provided that the modicum of sovereignty still retained by the rulers shall continue to rest in them and that the Union of India shall not disturb or detract from it, except to the extent otherwise specified in the respective Covenants. Thus, the privy purse cannot in any manner be equated to a political pension.
99. A pension does not exist till the money paid of the revenue assigned is actually in the hands of the grantee. All that is with the grantor before such payment is only a fund of goodwill; certainly, this fund of goodwill cannot be attached in execution. On the other hand, a privy purse exists in a latent form like the amount in a bank deposit or the consideration of a bill maturing at a specific point in future. So, it is attachable. Thus, there is no force in the Nawab's contention that the privy purse is a pension and partakes of its incidents.
(ii) Whether the proceedings before the Civil judge are a 'suit' for purposes of Section 86, Civil Procedure Code.'
100. It is urged that under Section 86 read with Section 87B the proceedings in the Civil Court that have led to the filing of the award followed by a decree, could, not legally have been started at all in the absence of by sanction of the Government of India; this being a mandatory provision, the waiver on the part of the Nawab does not make any difference. An alternative argument suggested though one is not sure how seriously -- is that if Section 86 did not apply to the case, still these proceedings were bad for want of competency under the general international law. Either way, it is urged on behalf of the Nawab that the proceedings are a nullity and the decree obtained is not executable.
101. The alternative argument can be disposed of briefly. If indeed Section 86 did not apply to these proceedings, then the principles of international law cannot come in. International law is a body of principles broadly and very generally recognized; but that is not absolutely uniform -- either in convention or actual practice. Both, in practical application or in theoretical interpretation there are many variations. Therefore, the legislatures of different countries have a choice. They may either leave the principles of international law in their application in the particular country to the law courts themselves so that with the development of case-law, both the natives of the country and foreign governments dealing with it come to know What is the international law as understood by its courts and applied by them.
Generally speaking, this is what has happened in England and to some extent -- though not to same extent -- in the United States of America. On the other hand, the legislature of a country can, by Itself, in the interest of clarity and uniformity expressly legislate in regard to the principles of international law which it wants to be applied in its country, in regard to the immunity of foreign sovereigns from court-process, the position in our country is what the legislature has expressly enacted in this regard. Once this has happened, it is not proper for the law courts to go outside the ambit of the statute, and try to apply what they suppose to be the principles of international law generally so called. This view has already been taken by the Bombay High Court in AIR 1955 Bom 45.
102. What makes it even a weaker argument on behalf of the Nawab is that, if we did apply the general International principles of law, he is definitely out of Court, because, having accepted the jurisdiction of the Court, he cannot subsequently be heard to say under these general principles that he is immune. He can, however, be heard to say under Section 85 read with Section 87B that a waiver on his part cannot give the court jurisdiction, as the ban imposed by statute is in our country absolute except that it can be cured by the written sanction of the Central Government. It is unnecessary to elaborate this argument as it has been clearly set out in the Privy Council case in AIR 1938 PC 165.
103. Thus, the only way in which the Nawab can prove his claim to absolute immunity and his not being prejudiced by his own acceptance of the Court's jurisdiction is by establishing that Section 86(1) is applicable to this case, the proceedings concerned being a suit properly so called; or in the alternative, that the words 'sue' and 'suits' in that section have been used in a very general sense to denote every civil proceeding. Actually, the learned counsel for the Nawab has tried to establish both.
104. It is unnecessary in this connection to go into a very elaborate inquiry except to bear in mind that we are interpreting the words 'sue' and 'suits' occurring in the Civil Procedure Code itself and not in any other enactment; secondly, that we are dealing with what is not merely a rule of procedure, but one of substantive right; thirdly, that this occurs in a special section dealing with 'suits by and against foreign states'; and finally, if further support is necessary at all, from the clarification indicated in the amendment of 1951, after which the section speaks of 'being sued in a Court otherwise competent to try the suit .... .'. There is case law in regard to every one of the headings pointing to a conclusion against the Nawab's contention.
105. There are enactments in which the word 'sue' is used very generally in the sense of setting the process of the Court into motion, the best-known instances are Sections 176 of the Government of India Act and the corresponding Article 300 of the Constitution
'Government . . . . , may sue or be sued ...... Any legal proceedings ......'
In this context, the word 'sue' has been used in the senser of initiating any legal proceeding. It is significant that these sections do not spealt of 'suing' in a su'it, but by implication, speak of 'suing' 'in any legal proceeding.' Again, the Civil Procedure Code creates a definite and exclusive category of legal proceedings called 'suits' which have got distinctive features at the beginning as well as at the end. It is not merely that a suit terminates in a decree, but also that it is initiated by a plaint, What a plaint is and what should it contain have been set out in the Civil Procedure Code. If later on, the same Code speaks of 'suing' and particularly 'suing in a suit', we should assume that the suit is a suit properly so called, and not merely any legal proceeding, unless of course (which it is not the case here), there is something to the contrary in the context itself.
106. There are certain proceedings which can be called 'suits' by implication or consequence. A proceeding in probate can turn out to be a suit, and an application in forma pauperis can certainly lead to a suit and, in fact, is the only purpose for which it is made, mere may be other proceedings under other enactments which are equivalent to a suit. There may also be cases where the original proceedings not being 'suit' properly so called, they are converted on the prayer of one party, and leave of the Court, into 'suits' properly so called. All the case-law filed on behalf of the Nawab is to show that a proceeding not initiated on plaint can still become a suit for the purpose of the Civil Procedure Code by coming under one or other of the categories indicated above. In the result, to attract the privilege given by Section 86(1) there must be a 'suit' properly so called, or a proceeding which by the shape it takes, becomes a 'suit' at some stage of its progress. An arbitration proceeding of this kind does not either at its initiation or subsequently, become a suit.
107. Section 141 has been referred to, but it cannot support the contention urged on behalf of the Nawab. The 'procedure' indicated for suits may be followed in other legal proceedings; but Section 86(1) is not mere procedure. A Code or enactment, though ostensibly described as one of procedure, may contain some provisions giving substantive rights. Similarly, a code which is described as a substantive law, can still contain some provisions of a procedural nature. The name only means that for the most part, the Code is one of procedural or substantive law, as the case may be. The test is of the effect of each provision. Whereas the Civil Procedure Code is for the most part one of procedure, there are here and there some provisions which give substantive rights : this section is one of them giving a right not to be sued in a suit except with the written consent of the Central Government. Lower down in it, we have a similar right against proceedings in execution without such sanction. As it happens, the, decree-holder in the present case, has obtained sanction for the execution of the decree. Thus, Section 141 cannot help the Nawab.
108. On the interpretation put here on Section 86 (1) it may happen that the foreign ruler or a similar privileged person is not protected from certain classes of proceedings which are neither suits, nor ones in execution. If this is the effect of the law, there is nothing more to be saidabout it, and it is of no avail to argue that the internationallaw as applied by the English Courts gives wider privileges.But it is of interest to note that whenever a proceedingleads to a decree, whether it is a suit properly so calledor not, that decree cannot be executed except with thesanction of the Central Government so that the protectiongiven by our enacted law is practically as good and complete as that given by the English Courts on their interpretation of the international law. Thus, I find that the proceedings before the court were not bad under Section 86(1)of the Code of Civil Procedure. The general principles ofinternational law are not applicable in so far as the subject-matter is governed by our enactment.