I. MAHMUD, J.-This is a Letters Patent Appeal from, an order passed by a learned Single Judge (Agha lmdadally, J. As he then was) on the Original Side of the High Court in Suit No. 111 of 1969, dismissing the appellants' application under rule 168 of the Sind Chief Court Rules (O. S.) for leave to issue third party notice to respondents 1 and 2.
2. The appellants entered into an agreement with Hayat Khan, respon--dent No. 3, on 9-3-6'7 appointing him as commission agent for sale of entire material of the ship "Ocean Endeavour" on agreed remuneration. Disputes having arisen thereunder, they were referred for arbitration to a sole arbitrator, who made his award on 31-1-69 awarding certain sums of money in favour of the respondent No. 3. The award was filed in Court on 11-3-69 by the arbitrator with a petition under section 14 (2) of the Arbitration Act, 1940, which petition :vas numbered and registered as Suit No. 111/1969 as required under rule 282 (3) of the Sind Chief Court Rules (O. S.) (hereinafter referred as the Rules). The appellants filed no objection to the award. But on 20-2-70, they filed Miscellaneous Application No. 294/70 under rule 168 of the Rules for leave to have a third party notice issued to respondent No. 1, Shamsuddin and respondent No. 2, Dr. Jumma, alleging that during the pendency of the suit, they had entered into an agreement with appellants to satisfy the claim of the respondent No. 3, which promise was guaranteed by the respondent No. 2, Dr. Jooma, and that they were entitled to contribution/ indemnity. On t-3-70 the Court ordered notice to issue to the third parties but as service could not be effected, the respondent No. 3 moved an applica--petition under section 151, C. P. C. For early hearing and for passing a decree in --his favour against the appellants, as they had filed no objections to the, award.
3. On this application, our learned brother Dorab Patel. J. (as he their was) while dismissing the application as premature, observed that until the application under rule 168 is disposed of, for which the Court had ordered notice to issue on 2-3.70, as stated earlier, the award could not be put up for hearing. Nevertheless, the respondent No. 3 filed another application, shortly, thereafter, for early hearing, on which the Court ordered that the Office should put up the award in Court within 15 days. Accordingly the, award was put up In Court on 17-11-70 and as neither appellants were present nor had filed any objections to the award, it was made rule of the Court and the suit was decreed in terms thereof. The decree was signed on 3-2-71. Thereafter. The appellants' application under rule 168 of the Rules cane up for hearing in Court on 3-5-71. It was dismissed by the impugned order of the learned Single Judge on the short ground that as the decree had already been passed in the suit, it could no longer be possible for the parties to defend the suit. The present appeal is from the said order.
4. The main submission of Mr. Muhammad Arif, learned counsel for the appellants, is that the learned Judge erred in holding that the application under rule 16s was not competent as a decree had already been grassed in the suit and, therefore, the third parties could no longer defend the suit. We have considered this submission, but in our opinion, it has no substance.
5. The main question is whether the Third Party Procedure contained in rule 168 was applicable to the arbitration proceedings in the suit then pending before the trial Court. The object of the Third Party Procedure prescribed in Chapter IX of the Rules, is to enable a defendant in a suit who claims contribution or indemnity against any person not already a party to the suit, called a third party.
Apply to the Court for leave 4o issue s third party notice to that person in the prescribed form. If the third party enters appearance and desires to dispute the plaintiff's claim against the defendant or his own liability to the defendant, the Court may either order that question to be tried as an issue at or after the trial of the suit or give the third party leave to defend the suit either alone or jointly with the original defendant and thereby have that question and the rights and liabili--ties of the parties determined by the Court. After the trial, the Court may pass a decree for or against the defendant and against or for the third party. Now, the proceeding initiated by the arbitrator filing the award in Court with his petition under section 14 (2) of the Arbitration Act, is as a matter of procedure of rule 2112 (3) of the Rules, numbered and registered a suit between one or more of the parties interested under the reference as plaintiff or plaintiffs and the remainder, as defendant or defendants. But, the petition, which is numbered and registered as a suit, is not a suit in the ordinary connotation of that word namely as a proceeding instituted by the presentation of a plaint and has none of the characteristics of a suit or of its trial. But, when a Court is seized of an award, it acts as an arbitration Coati and follows the special procedure laid down is the Arbitration Act, 1540. The jurisdiction of the Court under the said Act is either to accept the award or to set it aside on any of the grounds mentioned in sections 30 and 33 of the said Act. But the Court has go jurisdiction to determine, on merits, the rights and 3abilities of the parties to the award whet are before it, because these have already been adjudicated by the award of the arbitrator. A fortiori, it follows that a third party, who is a stranger the award, cannot be permitted to file objections to the award sir dispute the plaintiff': claim agsin.4 the defendant, or the defendant's claim against him for contribution or indemnity. In our opinion, the Third Party Procedure of application under rule 168 of the Rules was not applicable to the proceeding in the suit. Therefore. It is immaterial that the decree was passed against the appellants before toes application under rule 168 had been disposed of, despise the order of the previous Judge to the contrary, mentioned earlier. Admittedly, the appellants have not filed an appeal against the decree passed against them. To allow the present appeal on this ground would, in affect, amount to setting aside the decree of tae trial Court when no appeal has been filed therefrom. It was also immaterial that the rule 168 application has been dismissed by the impugned order on the ground that it was not competent after a decree has been passed. In our opinion, the submission of Mr. Muhammad Arif, is, therefore, misconceived.
6. We, sec no merit in this appeal. It is accordingly dismissed with colts.