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Judgment
On the authority of Shavaksha Dinsha Davar v. Tyab Haji Ayub 37 Ind. Cas. 140 : 40 B. 386 : 18 Bom. L.R. 559, which was followed in Dekari Tea Co, Limited, v. Assam Bengal Railway Company 61 Ind. Cas. 919 : 25 C.W.N. 127, it is argued that Section 89, Civil Procedure Code, precludes the application of Order XXIII, Rule 3 to cases in which there has been a reference to arbitration.
But, as was pointed out by Macleod, C.J., in Manilal Motilal v. Gokaldas Rowji 59 Ind. Cas. 53 : 45 B. 245 : 22 Bom. L.R. 1048, a decision which overruled that learned Judge''s earlier decision in Shavaksha Dinsha Dxvar v. Tyab Haji Ayub 37 Ind. Cas. 140 : 40 B. 386 : 18 Bom. L.R. 559, 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 XXIII, Rule 3 to adjust their deputes by a lawful compromise at any time after the institution of a suit.
The civil miscellaneous appeals fail and are dismissed with costs.