Judgement

IN this appeal the question raised was, whether an award of Mr. Frere, the agent of the Bombay Government at Surat, made upon a submission to arbitration by the Appellants and Respondent, was within the provisions of the Bombay Regulation, No. VII. of 1827, so as to entitle it to the force of a decree of Court, or had the effect only of an ordinary award, The Order of the Sudder Dewanny Court appealed from, directed the award to be enforced as a decree of Court against the Appellants.

The Appellants were Parsee bankers, residing at Surat. The Respondent was the Bukshee of Surat, and by virtue of his rank and relationship to the Nawab of Surat, exempted from the jurisdiction of the Civil Courts, unless with the consent of the Governor of Bombay (a}.

(a) Bom. Reg.IIl. of 1827, ch. ii., sec. 21, cl. 3, confirms the stipulation made in the Articles of agreement, dated the 13th of May, 1800, between the East India Company and the Nawab of Surat, of

6 M.I.A. 134 ( 1854- 1857) Nusserwanjee Pestonjee v. Meer Mynoodeen Khan 23

the exemption of the Nawab. his family and servants, from the jurisdiction of the Civil Courts ; and, by Bom. Reg. XI. of 1827, ch. i., from the Criminal Courts. The Act of the Legislature of India, No. 18 of 1848, provides for the administration of the Nawabs estate, and for certain privileges to his family. See, In re the Nawab of Surat, 5 Moores Ind. App. Cases, 499, where the principal sections of that Act are set out.

It appeared that in the years 1828 and 1830, the Respondent, in consideration of advances made to him, and for debts due by his father, mortgaged to the Appellants and others, large estates called the Mooglaee of Gundavee, in the Kingdom of His Highness the Guicowar of Baroda. On the 24th of April, 1852, the Respondent conceiving that he had grounds for being relieved from these mortgages, presented three petitions to Mr. Frere, the Government agent, under whose authority he was placed as a privileged native of rank (being a member of the family of the Nawab of Surat)t upon that subject ; and on the 27th of that month, the Appellants and two other persons, who also held property mortgaged to them by the Respondent, at the suggestion of the Bombay Government agreed to refer the subject-matter in dispute to the arbitration of Mr. Frere, and, accordingly, they executed the following aktiarnamah, or submission to arbitration—" We, Meer Akbar Ali Khan, Wd. Meer Surefuraj Ali Khan, Nusserwanjee Pestonjee, manager of the firm of Pestonjee Kalabhaee ; Cooverbaee, manager of the firm of Modee Rustomjee Hormusjee, who is his widow ; and Baee Premcoover, manager of the firm of Shett Hurgovundass Nuthoobhaee, write this (to wit) Meer Mynoodeen Khan, Wd. Meer Sud-roodeen Khan, in the matter regarding us, the creditors, presented three separate petitions in English, with their Goozerothee translations, on the 24th of April, 1852, the .same being attached at the top of this paper. In this matter, we contend, that his claim is altogether false, and the contents of the petitions are without grounds. We, therefore, in conjunction with the said Meer Mynoodeen Khan, give this aktiarnamah, authority in writing, to William Ed-ward Frere, Saheb Bahadoor, agent of Surat, to investigate this dispute, so that the~ said agent, after investigating the dispute consistently with justice, shall give his decision, which shall be agreed to by the parties. The parties shall not appeal against it ; and should the resolution of the decision be consistent with the razeenamah, it shall be agreed to by us, the parties." This deed of reference was signed by the parties, and attested by four witnesses.

Pursuant to this deed of reference, both parties appeared before Mr. Frere. Evidence was adduced, and documents and accounts of great length produced, and counsel were heard for both parties before the arbitrator, who, on the 2nd of November, 1852, made his award, by which he, in substance, decided that the Appellants had been