Anantakrishna Aiyar, J.
1. The appellant before us is the youngest of the three brothers of an undivided Hindu family, the eldest being the first respondent, and the other brother being the second respondent. The family had a cloth trade at Palghat, and another business at Mysore and Bangalore relating to mining leases, etc. The family possessed immoveable properties in Malabar, in Bangalore and in Travancore. Disputes having arisen between the brothers, they executed an agreement in favour of three persons to settle as arbitrators the matter of partition of all the joint family properties including the businesses at Palghat and Bangalore. On the allegation that the arbitrators passed the award--Exhibit C--dividing the. immoveable properties among the brothers in the way they thought fit and also deciding how the business should be disposed of and fixing the liability of the parties to each other in various respects, the two respondents filed an application in the Court of the Subordinate Judge of Palghat under paragraph 20 of the 2nd Schedule of the Code of Civil Procedure praying that 'the award may be filed in Court and a decree passed in terms thereof.' The appellant, who was made the respondent to the said petition, raised various objections to the filing of the award, one of the objections being that the Lower Court had no jurisdiction to entertain the application as the whole of the subject-matter of the award was not within the jurisdiction of the Lower Court paragraph 14 (w) of the defendant's statement of objections filed in the Lower Court. The Lower Court overruled that objection, and, finding that the objections raised by the appellant on the merits had not been made good, directed the award to be filed in Court and a decree drawn up, remarking at the same time, 'but there will be no directions in the decree as regards the immoveable properties situated in Parur (Travancore) and Bangalore.' The decree as drafted however contained the provision in paragraph 9 that
The plaintiffs be at liberty to institute proper proceedings in Court having jurisdiction over the properties situated in Mysore and Travancore States based on this judgment and to obtain reliefs as provided for in the award,
2. In this appeal, the appellant reiterated his objection as regards jurisdiction of the Lower Court to entertain the application under paragraph 20 of Schedule II of the Code of Civil Procedure, and also complained against the decision of the learned Subordinate Judge on the merits. The objection as to the jurisdiction, since it goes to the root of the whole proceedings, has first to be considered. The arbitrators awarded the house properties in Bangalore to the 1st respondent, and the immoveable properties in Travancore to the 1st and the 2nd respondents jointly. The other immoveable properties in Malabar were allot-ted some to the 1st respondent, some to the 2nd respondent, and some to the appellant. We need not here give details of the mode in which the business at Palghat and Bangalore was dealt with by the arbitrators.
3. The application to the Lower Court was made under paragraph 20 of Schedule II of the Code of Civil Procedure. Sub-clause (1) of the said paragraph enacts as follows:
Where any matter has been referred to arbitration without the intervention of a Court and an award has been made thereon, any person interested in the award may apply to any Court having jurisdiction over the subject-matter of the award that the award be filed in Court.
4. It is argued that the Court to which an application is made should have jurisdiction over the subject-matter of the award,' that is, it is contended, over the whole of the subject-matter of the award; as the Lower Court has admittedly no jurisdiction over the immoveable properties of the joint family situated in Travancore, it is argued that the Lower Court had no jurisdiction to entertain an application under paragraph 20.
5. On the other side, it was argued that the words 'subject-matter of the award' should be considered with reference to the jurisdiction of the Courts in British India and as meaning 'subject-matter situated in British India'; and as the Subordinate Judge's Court is a Court of unlimited jurisdiction, and as many items of immoveable properties included in the award are situated in Malabar within the Lower Court's jurisdiction, the Lower Court should be taken to have jurisdiction over the subject-matter of the award.
6. In this case we need not decide whether the properties situated in Bangalore should be taken to be properties situated outside British India, since it is admitted that the award has dealt with the immoveable properties of the family situated in the Travancore State, and as the Lower Court had no jurisdiction over immoveable properties in the Travancore State, the present is a case where a portion of the properties which form the subject-matter of the award is situated outside British India.
7. No direct decision on the question that we have to decide has been quoted to us. A similar question was raised in Ramlal Hargopal v. Kishan Chand (1923) I.L.R. 51 C.361 : L.R. 51 I.A. 72 : 46 M.L.J. 628 (P.C). There also an application was made to file a private award under Section 525 of the Code of 1882. At page 372 their Lordships of the Privy Council observed as follows:
It was contended on behalf of the appellant that if an award relates to more than one subject-matter and only one is within the jurisdiction of the Court, it cannot be filed in. that Court; in fact, that it can 'be filed in no Court, because no one Court would have jurisdiction over the whole subject-matter. Their Lordships deem it unnecessary to rest their judgment on any such general proposition. In their view there is no substantial question decided by the award which affects property within the jurisdiction of the Berar Court. No one of the three temples is within that jurisdiction, and two of them are within the dominions of the Nizam and outside British India. A large part of the award relates to family questions and money payments to be made by members of the family; and all the members of the family are within the Nizam's dominions. It was urged that two of the villages which form the principal endowments of the temples are situated in Berar. But their Lordships cannot find that there was any dispute concerning the ownership or management of the villages nor any denial that the revenues must be appropriated to the three temples.
8. Each side claimed that the observations made by their Lordships at pages 372 and 373 of the report supported its respective contentions; but we are unable to gather that their Lordships decided the question now before us. Finding as a fact that there was no dispute concerning the ownership or management of the villages within British India, they proceeded to observe that no decree could be framed upon that award which would affect any person or property within the jurisdiction, Their Lordships therefore had not to decide the question whether such an award could be filed and a decree passed thereon if the subject-matter of the award comprised immoveable properties both within British India and outside.
9. One has therefore to seek light on this question from other sources. Prima facie, the expression 'over the subject-matter of the award' would seem to imply over the whole of the subject-matter of the award. The words 'whole' or 'in part' occur in paragraph 11 of the second schedule, and in Section 17 of the Code the words 'any portion of the property' occur. If therefore the intention of the Legislature was that the words 'subject-matter of the award' should mean the whole or a portion of the subject-matter of the award, then it is reasonable to expect that it would have said so expressly. An analogous question arose under Section 327 of Act VIII of 1859 in Gangappa v. Kapinappa (1869) 5 M.H.C.R. 128 and Scotland, C.J. and Collett, J., observed at pp. 128 and 129 as follows:
An application must be made to a Court having jurisdiction in the matter 'to which the award relates'. From this it appears quit; clear to us that the Court applied to must be one having jurisdiction in respect to the whole matter.
10. In Rethamalai Servai v. Ramasami Servat (1919) 10 L.W. 57 Kumaraswami Sastri, J., observed at page 58 as follows:
Paragraph 20 of the 2nd schedule of the Code of Civil Procedure directs the filing of the award in any Court having jurisdiction over the subject-matter of the award. By 'subject-matter of the award', I think, is meant the whole matter dealt with and decreed by the award, and not any particular portion which affects any particular party. The jurisdiction of the Court will depend upon the reliefs awarded by the award.
11. The same view was taken by the same learned Judge in Nemichand Sowcar v. Kesarimull Somcar (1928) 56 M.L.J. 35 where an application for a decree in terms of an award was dismissed, the properties being situated some outside British India and some within Madras. No doubt the learned Judge's decision was based on other grounds also. The decision in Mitrli Mat v. Sant Ranr (1928) 113 I.C. 899 : A.I.R. 1929 Lah. 24 was relied on as a case similar to the present. Our attention was also drawn to the observations made by the learned referring Judges in S.A. Mathan. v. S.R. SamSon (1931) I.L.R. 9 Rang. 480 at 484 and 485. The award in that case dealt not only with the immoveable properties within the jufisdicon of the British Courts but also with immoveable properties in the French territory of Pondicherry. The award was filed and decree passed in terms thereof by the Subordinate Judge of Cuddalore, but the learned Judges of the High Court held that the Court, of the Subordinate Judge of Cuddalore had no jurisdiction to have: the award filed in the circumstances nor to pass a decree in terms thereof.
12. Thus, whatever authority there is on the point seems to favour the contention raised by the learned Advocate for the appellant. When an application is made under paragraph 20, notice is given to the other parties to the arbitration; and under paragraph 21 when the Court is satisfied of certain particulars mentioned therein, the Court shall order the award to be filed and shall proceed to pronounce judgment according to the award. Upon judgment so pronounced, a decree shall follow, and no appeal shall lie from such decree except in so far as the decree is in excess of or not in accordance with the award. Thus the judgment should be in accordance with the award, and the decree that should follow should be in accordance with the judgment. Therefore the decree should be in accordance with the award. The award deals with immovable property outside British India. The decree also therefore should deal with immovable property outside British India. Has the Court in British India jurisdiction to pass such a decree? Prima facie, not.
13. Then it was suggested that the decree should be confined to the subject-matter of the award in so far as the same is within the jurisdiction of the British Indian Courts according to the Municipal Law of British India. That probably is the view taken by the learned Subordinate Judge in the present case; for in his judgment, in paragraph 75, he observed as follows:
The award will be filed in Court and a decree will be drawn up, but there will be no directions in the decree as regards the immovable properties situated in Parur (Travancore) and Bangalore, though, as already noted, the decree in para. 9 declared that
the plaintiffs be at liberty to institute proper proceedings in Courts having jurisdiction over the properties situated in Mysore and Travan-core States based on this judgment and to obtain reliefs as provided for in the award.
14. Has the Court jurisdiction to direct the award to be filed in part and pass a decree in terms of portions only of the award under paragraph 20 of the second schedule? It seems to us that it is not open to the Courts to do so in a case like the present. The wordings of paragraph 21 that
the Court shall pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow' would seem to be, prima facie, against such a contention. That contention is also opposed to various decisions passed by several Courts in India. In R. Ry. Mana Vikrama v. M.K. Nambudri (1880) I.L.R. 3 Mad. 68 Sir Charles Turner, C.J. and Muthuswami Aiyar, J., held that a Court could not file an award under Section 52S of the Code of 1882 only as regards a portion of the award.
15. They further observed at page 69 as follows:
Although an award may perhaps be held enforceable in this country if the invalid portion can be separated from, and is independent of, the valid portions of the award, it cannot be enforced by summary proceedings under Section 526 of the Code. It is not without reason that in such a case the Legislature should think it inexpedient to give the party seeking to enforce the award a summary remedy, and it may have advisedly left him to obtain from the Court the relief to which he may be entitled by regular proceedings.
16. See also All a Rakhia Shivji v. Jehangir Hormasji (1873) 10 Bom. H.C.R. 391. Altaf Hossein v. Grish Chund'er Roy (1871) IS W.R. 556 Dandekar v. DandekarsT Thiruvengadathiengar v. Vaidinatha Aiyar11 and Mustafa Khan v. Phulja Bibi.12
17. In Narsingh Nwain Singh v. Ajodhya PraSad Singh13 the learned Judges Mukerjee and Carnduff, JJ., observed at page 114 as follows:
We may a,dd that it was not competent to the Courts below in a proceeding under Section 525 of the Code of 1882 to direct that the filed in part; the Court was bound to refuse the application, if in its opinion the award was open to attack in part.
18. Turning to the English Law we find the following:
It is clear that the property to be partitioned must be within the jurisdiction of the Court. The Chancery Division has no jurisdiction to order partition of immovable, property outside the jurisdiction'--see paragraph 1569, page 838 of Halsbury's Laws of England, Volume 21.
19. In such cases it is not entirely correct to say that the relief sought for can be entirely obtained through the personal obedience of the defendants within the meaning of Section 16 of the Code of Civil Procedure. The principle of Penn v. Baltimore (1750) 27 E.R. 1132 would not, in our opinion, apply to such a case having regard to the wordings of paragraphs 20 and 21 of the 2nd Schedule. Anyhow we are here concerned only with the question of jurisdiction to entertain the application, and not with the subsequent question whether a private award which the Court had jurisdiction. to file could be split up when separable, and filed in part, with the decree following only the portion of the; award so directed to be filed.
20. As observed in Bindessuri Prashad Singh v. Jankee Pershad Singh (1889) I.L.R. 16 C. 482 it was held that when the question of jurisdiction is raised, that question has to be decided first before proceeding further with the matter. In that case, with reference to an application filed under Section 525 of the Code of 1882, the other side raised objection to the jurisdiction of the Subordinate Judge before whom the application was filed. The learned Judges R.C. Mitter and Beverley, JJ., observed at p. 486 as follows:
The Subordinate Judge, before entertaining the application of the respondent, was bound to satisfy himself that he had jurisdiction to entertain it; and they added that
With reference to such objections he was bound even to take evidence before assuming jurisdiction.'
21. The question of jurisdiction to entertain the application under paragraph 20 of the second schedule of the Code of Civil Procedure has thus to be first considered and decided by us; and having regard to the considerations mentioned above, we think that answer should be that the Lower Court had not jurisdiction to entertain the application to file the award in the present case.
22. It is perhaps needless to mention that para. 20 provides a special procedure for filing awards in matters referred to arbitration without the intervention of the Courts and to have the decrees passed according to the award. It will be noticed that no appeal lies against such decree except in so far as the decree is in excess of or not in accordance: with the award. There is an appeal provided against an order filing or refusing to file an award in an arbitration without the intervention of the Court by Clause (f) of Section 104 of the Code of Civil Procedure. Filing award under paragraph 20 is only an extra and special statutory right conferred on parties under particular conditions imposed by that paragraph. The provisions in paragraph 20 do not constitute any bar to a regular suit to enforce the rights created by an award. Though in the first and the second drafts of the present Code of Civil Procedure it was sought to enact otherwise by the addition, of a special clause to that effect, to Section 525, that was not ultimately done. The framers of the first draft observed as follows with reference to clause 525:
One of the principal reasons for the ineffectiveness of arbitration without the intervention of the Courts is that the procedure allowed by the present section has been held not to exclude alternative remedies. It is considered expedient to negative the rulings to this effect.
23. The special clause to that effect which was sought to be inserted in the first two drafts was omitted by the Expert Committee from the bill which ultimately was enacted as the present Civil Procedure Code. The decisions on the point, therefore, remain good law at present, and the decisions are clear on that point; and it is only necessary to mention the Privy
24. Council decision reported in Muhammad Nawas Khan v. Alam Khan (1891) L.R. 18 I.A. 73 : I.L.R. 18 C. 414 (P.C.) As observed by their Lordships,
the refusal of am application) for the filing of an award, under Section 525, of the Code of Civil Procedure, merely leaves the award to have its own ordinary legal effect; and it cannot be contended that an award is not to be relied on as a defence in a suit relating to the subject-matter dealt, with by it only because such an application has not been granted.
25. Regular suits to enforce rights conferred by an award have been held to lie in Bhajahari Saha Banikya v. Behary Lah Basak (1906) I.L.R. 33 C. 881,' Gopi Reddi v. Mahanandi Reddi (1891) I.L.R. 15 M. 99 : 1 M.L.J. 591 Narasayya v. Rama-badra (1892) I.L.R. 15 M. 474 Krishna Panda, v. Balaram Panda (1896) I.L.R. 19 M. 290. Rajmal Girdhar lal v. Maruti Shivram (1920) I.L.R. 45 B. 329 and Hafakha Ram Jani v. Lakshmi Ram Jani (1920) I.L.R. 43 A. 108. We may probably conclude our judgment--as did the learned Judges in the case reported in Mustafa) Khan v. Phulja Bibi (1905) I.L.R. 27 A. 526 under somewhat similar circumstances--as follows:
We wish it to be understood that we decide this appeal entirely upon the question of the true meaning of Section 526 of the Code of 1882 (corresponding to paragraphs 20 and 21 of the 2nd Schedule of the present Code), and that we do not determine any other question raised before the Court below.
26. Without going into any other questions raised, this Miscellaneous Appeal must be allowed with costs here and in the Court below, and the application filed in the Lower Court will be returned to those who presented it.
27. The learned Subordinate Judge ought to have first passed an order that the award be filed under para. 21 of the second schedule of the Code of Civil Procedure. He should then have proceeded to pronounce judgment according to the award, and a decree should follow the judgment so pronounced. In this case it does not appear that there was a separate order, as contemplated by paragraph 21; but that would not prejudice the party affected from filing an appeal against the order, which should be deemed to have been passed by the Lower Court in the circumstances. In fact, it was not disputed before us that matter should be viewed in this light, and it is clear that the present C.M.A. is competent: Selvafayan Samson v. Amalor-pazwnadhan (1927) 55 M.L.J. 262.
28. I agree.