' These proceedings were initially filed a suit under section 5 of the Arbitration (Protocol and Convention) Act, 1937 (hereinafter referred to as the Act, 1937) seeking enforcement of the award, dated 25-2-1997 passed by the Arbitration Council of the Liverpool Cotton Association England with the following prayers:- "(a) Pronounce judgment in terms of the said Award;
(b) Pass decree according to the Award and order enforcement of the decree and Award;
(c) Grant interest;
(d) .
(e) ..
2. On 10-3-1998, following order was passed whereby parties were directed to make their submissions on the question framed by this Court:-- "Mr. Naraindas has raised a preliminary objection that the instant proceedings have wrongly been numbered as J.M. Instead of suit. Reliance is' placed by him on section 5(2) and section 6 of the Arbitration (Protocol and Convention) Act, 1937. He has also pointed out Rule 294 of the Sindh Chief Court Rules (O.S.) which provides that all the petitions filed under sections 3 and 5 of the Arbitration (Protocol and Convention) Act, 1937 shall be numbered as Judicial Miscellaneous Applications. It was contended by him that since the rule framed under section 10 of the Act, 1937 is contrary to the provisions of parent statute, it is liable to be struck down and the instant proceedings be treated as suit. Mr. Arif Khan requests for time to make his submissions on this point. Adjourned to 31-3-1998."
3. I have heard Mr. Arif Khan, Advocate for petitioner and Mr; Naraindas C. Motiani, Advocate for respondents. It is pointed out that there is no consistent practice of this Court as to how to treat a petition or suit filed under section 5 of the Act, 1937. In this connection, reference is made to the following reported cases where similar and identical proceedings were either registered as Judicial Miscellaneous Petitions or as regular suit:--
(i) Messrs Continental Grains Co. v. Messrs Naz Brothers (1982 CLC 2301);
(ii) Ralli Brothers & Company Ltd. v. Muhammad Amin Muhammad Bashir Ltd. (1987 CLC 83);
(iii) Nan Fung Textiles Ltd. Hong Kong v. H. Pir Muhammad Shamsuddin (PLD 1979 Karachi 762);
(iv) Marines Limited v. Adgus Shipping Co. Ltd. And 4 others (1987 CLC 1299);
(v) Arbitration between DampsRibsseiskabet Nordon Aktieselskale v. Ahmed Shipping Lines Limited, Wallace Road, Karachi (PLD 1983 Karachi 247);
(vi) Messrs European Grain and Shipping Ltd. v. Messrs Polychem Company Ltd. (PLD 1990 Karachi 254).
4. Mr. Naraindas as well as Mr. Arif Khan have referred to section 5(2) and section 6(2) of the Act, 1937 in order to show that a petition filed under section 5 of the Act, 1937 is to be treated as a suit and any judgment passed is to be treated as decree. It was further argued that Rule 294 of the Sindh Chief Court Rules (0.S.) is in conflict with these provisions. Before proceeding further, it would be advantageous if sections 5(2) and 6(2) of the Act, 1937 and Rule, 294 of Sindh Chief Court Rules (O.S.) are reproduced:-- Sections 5(2) and 6(2) of the Act, 1937.
"5(2) The application shall be in writing and shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants...
6(2) Upon the judgment so pronounced a decree shall follow, and no appeal lie from such decree except in so far as the decree is in excess of or not in accordance with the award."
Rule 294 of Sindh Chief Court Rules (O.S.).
"294. Applications under sections 3 and 5 of the said Act shall be made by petition and shall be disposed of as miscellaneous matters."
' Apparently, these rules were framed in furtherance of section 10 of the Act, 1937 for the purpose of filing of Award and all proceedings consequential thereon or incidental thereto and generally for all proceedings in Court under the said Act. It was argued that the Rule, 294 framed by the High Court being subordinate legislation to the Act. Is in derogation of and contrary to the parent statute.
Reliance was placed by Mr. Naraindas on the following cases:--
(i) Pir Ghulam Rasul Shah and another v. Chief Land Commissioner, Lahore and others (PLD 1967 Karachi 618);
(ii) S. Muhammad Din & Sons Ltd. Assistant Director, Labour Welfare (Conciliation) Lahore Region, Lahore and others (PLD 1968 Lahore 1012);
(iii) Haji Hashmatullah and 9 others v. Karachi Municipal Corporation and 3 others (PLD 1971 Karachi 514);
(iv) Hirjina Salt and Chemicals (Pak.) Ltd. Karachi v. The Union Council, Gharo and another (PLD 1972 Karachi 145); and
(v) Multiline Associates v. Ardeshir Cowasjee and others (1995 SCMR 362).
5. In the last cited case of Multilines, (ibid.) it was held by a Full Bench of Hon'ble Supreme Court that where any rules or regulations are framed which are inconsistent with the parent statute, then such rules or regulations to that extent being inferior and subordinate legislation will yield to the parent statute. Reference was made to the case Hirjina Salt Chemicals (Pak.) Ltd. v. Union Council, Gharo and others (1982 SCMR 522). A close scrutiny of the provisions of the Act, 1937 indicates that the proceedings are to be in the nature of suit. Subsection (2) to section 5 clearly mentions that where an application is filed for making an Award rule of the Court, the same shall be in writing and shall be numbered and registered as a suit between the applicant as plaintiff and the other parties as defendants. Moreover, subsection (2) to section 6 provides that upon announcement of a judgment on an application to be filed for enforcement of an Award, as of the instant proceedings, a decree shall follow. All these provisions clearly show that a petition or application filed for enforcement of an Award is to be treated as a ,suit. However, an application filed under section 3 of the Act, 1937 seeking stay of the 6. With the above observation, the objection stands disposed of.
Office is directed to treat this and the subsequent petitions/applications seeking enforcement of an Award filed under section 5 or 6 of the Arbitration (Protocol and Convention) Act, 1937, as a suit.