1. On the authority of Shavaksha Dinsha Davar v. Tyab Haji Ayub (1916) 40 Bom. 386 which was followed in Dekkan Tea Co. v. Assam Bengal Railway Co. A.I.R. 1921 Cal. 238 it is argued that Section 89, Civil Procedure Code, precludes the application of Order 23, Rule 3 to cases in which there has been a reference to arbitration.
2. But, as was pointed out by Macleod, C. J., Manilal Motilal v. Gokhaldas Rowji A.I.R. 1921 Bom. 310, a decision which overruled that learned Judge's earlier decision in Shavaksha Dinsha Davar v. Tyab Haji Ayub (1916) 40 Bom. 386. When the terms of the adjustment have been settled by an arbitration and award out of Court the parties may agree to ask for a consent decree. In such a case, the true position appears to be that the Court will not look at the arbitration proceedings, but only at the consent terms, as it makes no difference whether those terms have been arrived at by agreement between the parties acting by themselves or have been settled by a third party chosen by them.' These remarks apply to the facts of the present case. The power given by Section 20 of Schedule II to any person interested to apply to a Court to have an award filed in Court is not to be understood as overriding the general power given to parties under Order 23, Rule 3 to adjust their disputes by a lawful compromise at any time after the institution of a suit.
3. The civil miscellaneous appeals fail and are dismissed with costs.