A court passing a decree in terms of an award does not have the power to fix installments in the case as it would tantamount to an alteration or modification of the decree.

1. This Letters patent Appeal is directed against the judgment of a learned Single Judge of this court, Mian Jalal-ud-Din J, who has thereby dismissed the appellants application for fixation of instalments under O. 20 R. 11 (2) C.P.C.

2. One Ghulam Mohi-ud-Din who had business dealings with the present appellants and their father Ramzan Magrey filed an application under sections 8 and 20 of the Arbitration Act to refer certain disputes to an arbitrator in terms of clause 8 of the partnership agreement between the parties. The learned Single Judge vide his order dated June 16, 1969 referred the disputes to one Ghulam Hassan Hafiz of Anantnag who was an agreed arbitrator of the parties. The arbitrator after having entered upon the reference made his award on March 28, 1971 and filed it in the Court while the main application under sections 8 and 20 of the Arbitration Act was still pending before the learned Single Judge. The learned Single Judge gave notice of the filing of the award to the parties and invited their objections to the award. Several objections were raised by the appellants to the award, but none of them having prevailed, the award was made a rule of the Court by the learned Single Judge vide his judgment dated November 26, 1971 as a consequence whereof a decree in the amount of Rs. 31,200.75 came to be passed against the appellants and in favour of the respondents the heirs and legal representatives of the original petitioner Ghulam Mohi-ud-Din who had died during the pendency of the proceedings. Against the aforesaid judgment of the learned Single Judge the appellants went in appeal to a Division Bench of this Court but the Division Bench also vide its judgment dated August 13, 1973 upheld the order of the learned Single Judge and dismissed the appellants appeal.

3. After having lost their battle all along the line, the appellants ultimately filed an application under O. 20 R. 11(2) of the Code of Civil Procedure on February 26, 1974 for fixation of instalments qua the decretal amount of Rs. 31,200 .75 while the proceedings in execution of the said decree were going on. This application was based on two grounds; i.e. that the appellants were agriculturists and that they did not have any capacity to pay the entire decretal amount in lump. The learned Single Judge invited objections from the respondents in regard to the aforesaid application for fixation of instalments. The respondents objected to the maintainability of this application on the grounds, that the application was time barred, that the application ought to have been made to the Division Bench itself and that the decree having been passed on the basis of an award no instalments could be fixed in respect of such a decree.

4. The learned Single Judge over-ruled the first two objections taken by the respondents, but dismissed the appellants application by accepting the third ground and held that he had no power to alter or modify the decree in such a manner that it went against the terms of the award. The present appeal is directed against the aforesaid judgment of the learned Single Judge which has been passed on July 17, 1974.

5. We have heard learned counsel for the parties and have also gone through the record of the case.

6. Before going into the merits of the appeal we shall dispose of the preliminary objection raised by Mr. A. Karim the learned counsel for the respondents. Mr. A. Karim has contended that the present appeal is not maintainable as it does not fall under any one of the categories of Orders laid down in Section 39 of the Arbitration Act. Shorn of unessentials section 39 of the Arbitration Act reads thus: -

"39. Appealble orders. (1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order: -

An order-

(i) superseding an arbitration;

(ii) on an award stated in the form of a Special case;

(iii