ZAFFAR HUSSAIN MIRZA, J. This Letters Patent Appeal arises in the following circumstances :-
2. The dispute in this case relates to the estate of Late Dr. Hassan Apia. The appellant Yousuf Aziz is the son of the deceased from his first wife. The respondent No. 1 Mst. Aquila Begum is the second wife and surviving widow of the deceased whereas respondents 2 and 3 are the minor sons of the deceased from respondent No. 1.
3. There were disputes between the parties with regard to the distribution of the estate of the deceased which were referred to arbitration and an award was made on 19-2-1968. The reference was made on an agreement dated 27-10-1967 between respondent No. I acting for self and on behalf of the minors, and the appellant.
4. During the course of the arbitration, however, the parties mutually agreed to the distribution of the property whereby the present appellant was apportioned property valued at Re. 55,575, in lieu of which appellant agreed to take over the running business carded on under the name and style of Central Homeopathic Stores at Arambagh Road alongwith its goodwill and stock-in-trade valued at Rs. 87,000. In order to compensate the respondents for the excess value, the appellant undertook to pay the excess amount of Re. 31,425 to the respondents in 31 monthly instalments subject to a default clause to the effect that if any time 4 instalments fell in arrears "the whole amount will become due and payable immediately, and Mst. Aquila Begun (respondent No. 1) acting for self and as natural guardian for the minor children shall be fully entitled to take possession of the shop at Arambagh Road, Karachi and recover the unpaid balance of the said sum of Re. 31,435 by transferring the said shop to any person to whom she may think proper".
5. The award was filed in this Court and was registered a-- Suit No. 113 of 1968. When the award came up for consideration before the learned Single Judge on the original side on 1-10-1968, the counsel appearing for parties pointed out that the main defect in the award will be that in absence of a properly appointed guardian of the property of the minors, the award would be open to question by the minors on their attaining majority. In view of this difficulty the learned Judge ordered that the suit be set down for regular hearing after sometime so that a suitable person be appointed as guardian of the minors. It seems that thereafter an order was obtained from the learned Civil Judge Ist Class, Karachi dated 14.3-1969, appointing Mat. Aquila Begum as guardian of the person and property of the minors. Consequently when the case cacao up for hearing on 23-4- 1969 this fact was brought to the notice of the Court and on the same day by consent of the parties the award was made the rule of the Court.
6. In the events that happened, however, after depositing Re. 3,000 in Court, the appellant made a default in the payment of the balance amount of Re, 28,000. Consequently the respondents filed execution application of the decree praying for delivery of the possession of the shop. On 9-2-1970 the learned Judge on the Original Side ordered writ of possession to issue but deferred the execution thereof after six months if money is not deposited till then in the Court. Upon the failure of the appellant to deposit the balance of decretal amount within the prescribed time the writ was Issued and the possession was taken over from the appellant and delivered to the, respondents on 12-8-1970. Thereafter on 21-8-1970 the appellant moved Miscellaneous Application No. 365 of 1970 wherein he prayed for amendment of the warrant of possession so that the possession of the shop be taken subject to the payment to the appellant, the difference of the value of the shop arid the decretal amount. In the alternative a prayer for appointment of a receiver, was made in order to deposit the income of the shop towards the satisfaction of the outstanding amounts under the decree. The learned Single Judge dismissed the application as not maintainable by his impugned order dated 26-10-1970. The appellant seeks to challenge this order to the present Letters Patent Appeal.
7. The appeal was however, time barred by 23 days and the appeal was therefore admitted subject to question of limitation regarding which an application for condonation of delay under section 5 of the Limitation Act was submitted. However, the grounds urged !n support of the application were riot sufficient and by order dated 17-3-1977 the Letters Patent Bench of this Court dismissed the application under section 5 of the Limitation Act.
8. It was however, contended by the learned counsel for the appellant that irrespective of the appeal being barred, it will still be maintainable in law inasmuch as the award which gave rise to the impugned order is void and therefore a nullity to be ignored by the Court. For consideration of this question the hearing was adjourned.
9. We have nor heard Mr. A. M. I. Nomani for the appellant and Mr. Talmiz Burney for the respondents.
10. Mr. Nomani has repeated his contention before us that the award being ab initio void and a nullity in law, the question of limitation does not arise for consideration. In support of his submission learned counsel placed reliance on Chief Kwame Asante v, Chief Kwarne Tawla PLD 1949 P C 45in which it was held that after it appears to an appellate Court that an order against which an appeal is brought has been made without jurisdiction, it can never be too late to admit and give effect to the plea that the order was a nullity. The counsel neat relied upon Mahmud Alum v. Mehdi Hussain PLD 1970 Lah. 6, which seems to be a direct decision on the point, as it was held in this case that in spite of the fact that prima facie the appeal may appear to be barred, the appellate Authority can entertain and decide it on merits if the order under appeal is a nullity. Before however, this contention can be considered, it has to be shown that the Impugned order is a nullity in law.
11. In this behalf the submission of the learned counsel was that the agreement of arbitration as a result of which the award was made, was entered into by respondent No. 1 on behalf of .The minors at a time when she was not the certificated guardian of the minors and as such she was not competent to contract on their behalf. Counsel cited Muhammad Anwar v. Muhammad Aslam PLD 1955 Sind 289. Inamullah, J. (as he then was), while considering objections to an award filed in Court under section 14 in a case where reference to arbitration, as in the present case vas made by the mother as a de facto guardian of her minor children, made the following observations ; "The mother, under the Mohammedan Law, is disqualified within the meaning of section 11 of the Contract Act, to enter into any legal contract, such as making a reference (on behalf of a minor son) to arbitration and, as such, the award would be void and can be challenged even by a third party."
The proposition of law enunciated in the cited decision may not be open to question but it cannot be overlooked that Inamullah, J.. While upholding the objection to the validity of the reference was obviously exorcising jurisdiction under section 33 of the Arbitration Act. Whereas the learned counsel is inviting us to examine the validity of the award which has already been made the rule of the Curt by consent of parties. In connection with an order passed in execution of the decree.
Section 32 of the Arbitration Act provides that notwithstanding any law fox the tints being in forts, no suit shall lie on any ground whatsoever for a 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 the said Act. The challenge to the validity of the award can be made under section 30 when the award is filed and under section 32 any party to the arbitration agreement can move the Court to challenge the existence or validity of an arbitration agreement or an award.
12. The order impugned before us in the present appeal is the order passed in execution of the decree and therefore under section 47 of the Code of Civil Procedure, the scope for challenge to the decree is very limited. A The executing Court cannot go behind the decree to examine the validity or the inexecutability of the decree. It is an admitted position that the objection presently raised before us, was not raised at any stage of the proceedings. As observed earlier the award was made the rule of the Court with the consent of the parties and the order was not challenged by the appellant by an appeal under section 39 of the Arbitration Act. The said Act no doubt provides in section 17 that when the award is not set aside, the Court shall pronounce judgment according to the award and a decree shall follow thereupon, and no appeal shall lie from such decree except on the ground that it is in excess, of, or not otherwise in accordance with, the award.
The appellant therefore neither filed an appeal against the order refusing to set aside the award, which question did not of course arise in view of the consent of parties, nor an appeal under section 17 of the Arbitration Act. Indeed, the facts quite clearly show that the appellant was satisfied with the award .And in fact acted upon it by taking over the business concern in question. Ira these circumstances it does not lie in the mouth of the appellant to, now turn round and challenge the award as a nullity. The rule is well established that a party who invites the Court to adopt a particular course of action cannot be permitted to challenge the same as without jurisdiction, as no party is entitled to approbate and reprobate in the same proceedings. This rule was applied by the Calcutta High Court in Jupiter Insurance Company v. Calcutta Corpn. AIR 1956 Cal. 470. The facts in this case were that the applicant participated in arbitration proceedings without protest and fully availed of the entire proceedings. But the award passed by the arbitrator went against him. The applicant challenged the arbitration proceedings as without jurisdiction on the ground that the agreement for arbitration was void as the Corporation bad no power under the Calcutta Municipal Act to refer any matter to arbitration. 1n this connection refusing to entertain the objection P. B. Muthadi, J. Made the following observations :- "It will be seen from this case what the Court does. It does not decide the question of competence of the reference. In fact it does not at all go into the question of statutory disability and when the statute creates disability in this respect there is no difference between a person and a Corporation.
It does not say that there can be any estoppel against statute or consent will create statutory capacity where there is none, as indeed no Court can say it either in respect of the person or a Corporation. In the words of the Lord Chancellor which I have just quoted the Court says "the claimant cannot now be beard to make the objection even if the objection might have prevailed if taken in due time". In other words the measure of the Court's attitude is that it disallows the party to urge his point at all, so that it has no more any occasion to decide it. In such cases what the Court does is not to pronounce on question whether the award or the arbitration proceeding was void but it prevents the point being taken by a party to challenge the award or being aware of the disability of the other party he did not take such objection on that ground at the stage when the matter was referred or submitted to arbitration."
The facts of the present case attract the principles laid down in the aforesaid decision with greater force, inasmuch as, before the award was made the rule of the Court, the appellant was aware of the defect in the competency of the reference which necessitated the adjournment of the hearing to enable the other side to obtain an order of appointment of the mother as the guardian. Yet when the order was obtained. Obviously in order to cure the defect, the appellant chose to consent to the award.
13. This sufficiently brings out the distinction between the case of Mohammad Anwar on which reliance was placed. In that case the objection regarding the competency of the reference was taken at the earliest opportunity, on behalf of the minor when the award came up for confirmation before the Court. We are therefore clearly of the view that the appellant is not entitled to raise this objection.
14. Another important aspect of the case which requires to be noticed is that the rule invoked by the appellant that the statute of limitation will not be attracted if the order appealed against, is a nullity in law, can only C apply in the present case if the order is shown to have been passed without jurisdiction. In this connection it will be recalled that the order was passed in execution upon an application moved by the appellant himself far amendment of the writ of possession. The appellant therefore accepted tire main order granting the execution as validly passed and was merely seeking an amendment thereto. The subject-matter of the present appeal, accordingly, is the order rejecting the application of the appellant and therefore the decree which was under execution is not before us in these proceedings. We fail to see how the appellant in such case can challenge the decree as a nullity in these proceedings. Indeed. The appellant could not have challenged the decree on the ground presently urged, in execution proceedings. In Abdul Kader v.
East Pakistan Provincial Cooperative Bank Ltd 1969 SCMR 275 a some--what similar question was considered by their Lordships of the supreme Court. In that case an award was pasted by the Assistant Registrar of the Cooperative Societies. Acting as an Arbitrator under section 87 of the Bengal Cooperative Societies Act. 1940. An application for the execution of the award was made before the civil Court, wherein the petitioner made an application under section 47 of the Code of Civil Procedure objecting to the execution of the award mainly on the ground that the award in question was not a valid award, as it was made without jurisdiction. The objection was overruled by the executing Court. In this connection their Lordships while refusing leave to appeal observed that an executing Court cannot behind an award and determine its validity or invalidity. It was further observed that the executing Court is required only to execute the award as it is. The dictum laid down by their Lordships is in all fours with the present case. The position in this case is that the award is being challenged as a nullity when it has already merged in the decree. It is therefore not open to the appellant to plead the nullity of the award as a ground of attack against the decree.
15. In the result the contention of the learned counsel for the appellant fails and as a consequence, the application for condonation of delay having been dismissed, this appeal is liable to be dismissed as barred under the Limitation Act. Accordingly the appeal is dismissed with coats.
I. MAHMUD, J-I agree.