JUDGMENT Coxe, J. - The facts of the present case are as follows:--The Appellant obtained a decree against the Respondent in the Calcutta Small Cause Court in 1893. This decree was transferred for execution to the Subordinate Judge of Nadia. Apparently for several ensuing years the Appellant endeavoured in vain to enforce it. The last application for execution to which I need refer was filed in 1906. This was objected to by the Respondent. The parties ultimately agreed to refer the matter to arbitration. The arbitrator gave his award on the 18th March 1907 and it ran as follows :--"The judgment-debtor withdraws his objection and the decree-holder agrees to take the decretal amount by instalments as follows : Rs. 400 to be paid within two months from the date and Rs. 400 more to be paid within the course of one year. The remainder of the decretal amount will have to be paid in two years more in half shares. In other words half the remainder must be paid within the year 1315 and the other half within the year 1316, B.S. The costs incurred in the execution of the decree will be borne by the parties themselves. Under the circumstances I consider the arrangement fair and recommend that the Court will be pleased to confirm the same. In the event of non-payment the decree-holder will be at liberty to execute the decree and to realise the money by attachment and sale of the judgment-debtor's property." On receiving the award the learned Subordinate Judge, dealing with case which related to the objection of the judgment-debtor, ordered "That the award is approved by the Court and this case is disposed of in terms thereof. The judgment-debtor withdraws from the objection, which is therefore rejected and the case is dismissed." And the same day the Subordinate Judge, dealing with the case which related to the decree-holder's application for execution passed an order to the effect that "The award is approved and accepted by the Court, and in terms thereof the original decree is modified and a decree is to be substituted as set forth in the award and agreed upon by both parties. This execution case is dismissed in terms of the said award." About a year and a half later, on the 25th August 1908, in the case relating to the objection of the judgment-debtor, a formal decree was drawn up to the effect that the case be decreed in terms of the award. The judgment-debtor seems to have paid the first instalment and on the 31st March 1909 the decree-holder applied for execution of this decree of 1908 with respect to the second instalment. The Courts below have refused this application and the decree-holder appeals. 2. It is argued on his behalf that the order of the 18th March 1907 extinguished the original decree and amounted to a new decree which can be executed in the ordinary course. The decisions in Jhabar Mahomed v. Modan Sonahar I. L. R. 11 Cal. 671 (1885), Hukum Chand Oswal v. Taharunnessa Bibi I. L. R. 16 Cal. 504 (1889), Tukaram v. Anant Bhat I. L. R. 25 Bom. 252 (1900), Belchambers v. Sarat Chandra Ghose 12 C. W. N. 674 : s. c. I. L. R. 35 Cal. 870 (1908) were cited on behalf of this argument. Now no doubt when the original decree is completely superseded by a subsequent contract, the cases cited are authority that that contract is not rendered void by sec. 257 A of the Code of 1882, so as to bar a subsequent suit upon it. There is no case however in which such a contract has been recognised in execution and in Jhabar Mahomed v. Modan Sonahar I. L. R. 11 Cal. 671 (1885), it was held that such a contract could only be enforced by a fresh suit. And even where the question is not one of execution but of a subsequent suit the test whether the contract is enforceable or not turns on the point whether the judgment-debt, qua judgment-debt is or is not put an end to [Venkata Subramania Ayyar v. Koran Kannan Ahmed I. L. R. 26 Mad. 19 (1902), followed in Gopal Sahu v. Brij Kishore Persad I. L. R. 32 Cal. 917 (1905) as well as in Belchambers v. Sarat Chandra Ghose 12 C. W. N. 674 : s. c. I. L. R. 35 Cal. 870 (1908)]. 3. Now I do not think that the arbitrator's award in this case extinguished the former decree. 19 (1902), followed in Gopal Sahu v. Brij Kishore Persad I. L. R. 32 Cal. 917 (1905) as well as in Belchambers v. Sarat Chandra Ghose 12 C. W. N. 674 : s. c. I. L. R. 35 Cal. 870 (1908)]. 3. Now I do not think that the arbitrator's award in this case extinguished the former decree. The concluding words, "In the event of non-payment the decree-holder will be at liberty to execute the--and to realise the money by attachment and sale" (where the missing word appears to be "decree"), indicate that the arbitrator contemplated the execution of the original decree in the event of non-payment. The decree to which reference is intended can hardly be the decree which the arbitrator expected to be drawn up on the award. I do not think he expected any such decree to be drawn up. The words occurring a little before, "The costs incurred in the execution of the decree," certainly refer to the original decree. It seems to me therefore that the award so far from extinguishing the former decree and substituting a new contract therefor, merely made an alteration in the time of payment and intended that that payment should be enforced in execution of the original decree. Nor is the matter carried further by the order on the judgment-debtor's objection. The order on the petition for execution however does go further. It provides that the "original decree be modified and a decree be substituted as set forth in the award." : But apart from the fact that the modification of the original decree is not necessarily inconsistent with the supposition that the new decree is to be enforced by execution of the old decree, the new decree which was long afterwards drawn up was simply in accordance with the award. If the award therefore did not extinguish the old decree it could not be extinguished by the terms of the order of the 18th March, which found no place in the ultimate decree. It appears to me therefore that the so-called decree of August 1908 merely provided that the sums payable under it were to be realised in execution of the decree of 1895, and if the execution of that decree was barred, the existence of the subsequent decree would not save the execution from the operation of sec. 230, C. P. C. 4. 230, C. P. C. 4. Nor can the order be regarded as a "subsequent order" within the meaning of sec. 230. Sec. 210 shows how an order of that kind can be made. It can only be made by the Court which passed the decree; and the section lays down in express terms that save as provided in that section and sec. 206, no decree shall be altered at the request of parties. This direct and emphatic provision of the Code cannot in my opinion be evaded. It seems to me that the order now under consideration derives whatever value it may have from the fact that it was passed by consent of parties, and sec. 210 seems to me to deal definitely with this question of consent of parties and to lay down under what circumstances effect may and under what circumstances effect may not be given to such consent. 5. Next it is argued that the decree of August 1908, whether it be good or bad, cannot be questioned by the executing Court. In the view that I take of that decree this question does not arise, as I hold that that decree, as it stands, does not justify the execution of anything but the original decree. The point, however, has been fully argued and I think that I should refer to it. No doubt an execution Court cannot go behind a real decree, Moharaja of Bhartpur v. Rani Kanno Dei I. L. R. 23 All. 181 (1900). But I am not prepared to hold that no order which may bear the name of a decree can be questioned in execution. The decree now before us is not a decree in a suit. The number it bears, "56 miscellaneous," is not the number of a suit under sec. 206 of the Code. In place of the "particulars of the claims" required by that section appears the judgment-debtor's objection to the execution and the relief sought is the dismissal of the application for execution. It has been argued that the order may be regarded as analogous to an order under sec. 526 or to one under sec. 258. It may be analogous to an order under sec. 526 but in my opinion it is not such an order and cannot be so treated. It has been argued that the order may be regarded as analogous to an order under sec. 526 or to one under sec. 258. It may be analogous to an order under sec. 526 but in my opinion it is not such an order and cannot be so treated. And I know of no authority which justifies the execution of an order recording a payment under sec. 258. 6. It appears to me that this so-called decree is a mere pretence. The Subordinate Judge had no power to sanction an agreement to give time for the satisfaction of a judgment-debt, he had no power to extend the period of limitation and he had no power to alter another Court's decree. He could not do these things by calling his order a decree and by forcing it with considerable difficulty into the form of a decree. The judgment-debtor is in my opinion entitled to show that this order is not a decree at all but merely an illegal order, in the garb of a decree, sanctioning an arrangement which could not be enforced in execution. 7. Thirdly, it has been argued that the judgment-debtor is estopped by his conduct from contesting the present application and from pleading that the order of August 1908 is not a decree. But as this order, if it could have any effect at all, could only obtain that effect by defeating the provisions of sec. 257A and sec. 230 no question of estoppel can arise. And of course if the view that I take of the first point be correct, this third point does not really arise. 8. I would therefore dismiss the appeal but in the circumstances without cost. Teunon, J. 9. In this case it appears that on the 24th of June 1895 the decree-holder Appellant obtained a decree in the Small Cause Court, Calcutta, against the judgment-debtor, Respondent. 10. The decree was transferred under the provisions of sec. 223 of the Code of Civil Procedure, 1882, to the Court of the Subordinate Judge of Nadia, and in that Court in 1906 the decree-holder made his 7th application for execution. The judgment-debtor preferred certain objections and in the proceedings arising out of his petition and the decree-holder's application the matters in dispute between the parties were on their application referred by the Court to arbitration. The judgment-debtor preferred certain objections and in the proceedings arising out of his petition and the decree-holder's application the matters in dispute between the parties were on their application referred by the Court to arbitration. Before the arbitrator the parties came to terms and, on the 18th March 1907, the arbitrator submitted to the Court the following report:-- Both parties have appeared before me. They are nearly related to one another and at my suggestion they have very properly made an amicable settlement of the (sic ? their) disputes. The judgment-debtor withdraws his objection and the decree-holder agrees to take the decretal amount by instalments as follows : Rs. 400 to be paid within 2 months from this date and Rs. 400 more to be paid within the course of one year. The remainder of the decretal amount will have to be paid in two years more in half shares. In other words half the remainder must be paid within the year 1315, and the other half within the year 1316, B. S. The costs incurred in the execution of the decree will be borne by the parties themselves. Under the circumstance I consider the arrangement fair and recommend that the Court will be pleased to confirm the same. In the event of non-payment the decree-holder will be at liberty to execute the (?) and to realise the money by attachment and sale of the judgment-debtor's property. The signatures of the decree-holder and judgment-debtor are affixed. 11. As for statistical purposes the decree-holder's application for execution and the judgment-debtor's petition of objection had been separately numbered, the Subordinate Judge proceeded on the arbitration report to pass two orders. The order recorded on the order-sheet of the case arising out of the judgment-debtor's petition is as follows :--"The arbitrator has filed his award. Judgment-debtor's pleader intimates that no objection will be preferred on either side as it is based upon compromise. It is not necessary to grant time for filing of objections. 12. It is ordered that the award be approved and this case is disposed of in terms thereof. The judgment-debtor withdraws from the objections which are therefore rejected and the case is dismissed. 13. On the order-sheet attached to the proceedings on the application for execution the order runs as follows :-- In this case (No. 56 of 1906), the judgment-debtor took certain objections to the execution. The judgment-debtor withdraws from the objections which are therefore rejected and the case is dismissed. 13. On the order-sheet attached to the proceedings on the application for execution the order runs as follows :-- In this case (No. 56 of 1906), the judgment-debtor took certain objections to the execution. The matters were referred to arbitration. The arbitrator has filed an award based upon the amicable settlement of the parties. The award is approved and accepted by the Court and in terms thereof the original decree is modified, and a decree is to be substituted as set forth in the award and agreed upon by both parties. This execution case is dismissed in terms of the said award, each party bearing his own costs. 14. Though recorded on two order sheets the two orders are obviously orders in one and the same matter and must be read together. In the result we find that the judgment-debtor's petition of objection, and the decree-holder's application for execution of the decree of 1895 were alike dismissed, and an order made that in place of the subsisting original decree there should be substituted a decree in modified terms based on the arbitrator's award. 15. These orders were passed on the 18th March 1907 and on the 25th August 1908 were embodied in a formal decree signed by the decree-holder but apparently not by the judgment-debtor's pleader. 16. This decree recites the decree-holder's application for execution, the judgment-debtor's objections, the reference to arbitration, the report on award of the arbitrator and finally declares that the decree is in accordance within the said award. 17. The decree-holder now applies for execution of this decree of the 18th March 1907 and 25th August 1908. The application states that the first instalment due on the 18th May 1907 had been paid, and no further payment having been made, execution is sought in respect of the second instalment. 18. The judgment-debtor without denying the payment of the first instalment objected (1) that execution of the decree of 1895 was barred by limitation. (2) That the reference to arbitration and the arrangement or compromise made in 1907 were contrary to law, and (3) that the orders and decree based on the arbitrator's award were made without jurisdiction, and were therefore null and void and incapable of execution. 19. (2) That the reference to arbitration and the arrangement or compromise made in 1907 were contrary to law, and (3) that the orders and decree based on the arbitrator's award were made without jurisdiction, and were therefore null and void and incapable of execution. 19. The Sub-Judge held that the original decree of the Court of Small Causes had been adjusted, or extinguished, and that the validity of the substituted decree could not be questioned in execution proceedings. 20. On appeal the District Judge held that the Court of the Subordinate Judge to which the decree of the Small Causes Court had been sent for execution had no power to substitute another decree in place thereof, and that the decree so substituted was therefore a nullity, and incapable of execution. 21. The decree-holder now appeals to this Court, and on his behalf it is urged that the decree of 1895 should be regarded as extinguished or adjusted by the proceedings of the 18th March 1907, that this adjustment was certified to the Court by the decree-holder, and that the decree thereupon made by the Court of the Subordinate Judge upon the arbitrator's award should be regarded as one made substantially in accordance with the provisions of secs. 525 and 526 of the CPC 1882. It is also urged that the Respondents are estopped from questioning the orders made by the Subordinate Judge on the 18th March 1907. 22. On behalf of the Respondents, judgment-debtors, it is contended that the proceedings before the arbitrator represent merely an agreement to give time, that such agreement is void by reason of the provisions of sec. 257A of the Code of Civil Procedure, 1882, that if the orders of the 17th March 1907 are to be regarded as orders made under sec. 210 of the said Code, they were made without jurisdiction, that even if the agreement extinguished or superseded the original decree, the remedy of the decree-holder was by suit, and not by application in execution, and lastly that the procedure prescribed in secs. 525 and 526 of the Code of Civil Procedure, 1882, not having been followed, the orders of the 18th of March 1907, and the formal decree in pursuance thereof cannot be regarded as orders and a decree made under the provisions of those sections. 23. 525 and 526 of the Code of Civil Procedure, 1882, not having been followed, the orders of the 18th of March 1907, and the formal decree in pursuance thereof cannot be regarded as orders and a decree made under the provisions of those sections. 23. Now, if we have in the present case merely an agreement to give time, it cannot be disputed that by reason of sec. 257 A of the Code of Civil Procedure, 1882, that agreement is void. Similarly if we have merely an agreement, or contract, extinguishing and superseding the original decree there can be no question that the decree-holder Appellant's remedy was by suit. 24. Thus the questions that arise for determination are:-- (1) Whether the orders of the 18th March 1907, and the decree in pursuance thereof should be regarded as orders and a decree made under sec. 526 of the Code of Civil Procedure, 1882, and (2) if not, whether the orders of the 18th March 1907 should be regarded as orders made under sec. 210 of the Civil Procedure Code, 1882, whether the Respondents are estopped from questioning the said order and whether the original decree as modified by those orders can now be executed. 25. At first sight it might seem that in his report of the 18th March 1907, the arbitrator makes no award, but merely informs the Court of an arrangement arrived at by the parties. But it is clear that the Court to which the report was submitted interpreted the arbitrator's expressed approval of the arrangement as an award, and that the parties then and since accepted this interpretation. Even in his present petition of objection the judgment-debtor speaks of the arbitrators roidad or award, and I am of opinion that we should not now place any different construction upon the arbitrator's report. 26. Secs. 506 to 522 of the Code of Civil Procedure, 1882, do not appear to contemplate references to arbitration by the Court in execution proceedings, and this indeed is or was one of the contentions of the judgment-debtor Respondent. The present reference may therefore be taken as one made without the intervention of any Court. 27. As already found, an award was made on the reference, and the report of the arbitrator contained a prayer that the Court should be pleased to confirm the award. 28. The present reference may therefore be taken as one made without the intervention of any Court. 27. As already found, an award was made on the reference, and the report of the arbitrator contained a prayer that the Court should be pleased to confirm the award. 28. Though submitted or handed to the Court by the arbitrator the application was signed by the decree-holder, and may therefore be regarded as in effect the present Appellant's application that the Court should pass the orders, in accordance with the award. It is true that the Court did not register and number the application but the provision in this behalf appears to be one made mainly for statistical purposes, and the Court's failure to comply therewith is not in my opinion an omission which should be regarded as affecting the essential character of the application as a suit, or as prejudicing the rights of parties. 29. It is true also that the Court did not issue notice to the other party to the arbitration, that is the judgment-debtor Respondent, but that also, it appears to me, is at most an irregularity and cured in the present instance by the fact that the judgment-debtor had himself signed the application, had notice and intimated to the Court through his pleader that he had in fact no cause to show. By the orders of the 18th March 1907, the Subordinate Judge thereupon in effect pronounced judgment according to the award, and the decree now sought to be executed followed. 30. In this view, no question of jurisdiction arises, for the submission to arbitration and the making of the award were both within the jurisdiction of the Subordinate Judge within whose jurisdiction also both parties reside. 31. For these reasons I am of opinion that the orders and decree of the 18th March 1907 should be regarded as order and a decree made under sec. 526 of the Code of Civil Procedure, 1882, that they superseded or extinguished the decree of 1895, and that the decree sought to be executed is capable of execution. 32. I may here notice the suggestion that even if the orders and decree of the 18th March 1907 are to be regarded as order and a decree made under sec. 526 of the Code of Civil Procedure, 1882, that they superseded or extinguished the decree of 1895, and that the decree sought to be executed is capable of execution. 32. I may here notice the suggestion that even if the orders and decree of the 18th March 1907 are to be regarded as order and a decree made under sec. 526, even so they and the arbitrator's award should be construed as providing merely that on failure to pay the sums specified the decree-holder shall be at liberty to realise by execution of the original decree. As that decree is barred execution has become impossible. 33. I am unable to accept this view. If and in so far as it refers to the original decree, the decree of March 1907 may be said to incorporate that decree, and in so far as read with the award it provides that certain sums shall be paid, on or before certain specified dates, is in itself a decree to be enforced and executed. If it be said that this was not the intention of the parties or the arbitrator, the reply is that the order of the 18th March 1907 was made in the judgment-debtor's presence and that his remedy was by appeal. 34. But I am not prepared to accept the view that the decree of the 18th March is in excess of the award. The substantive portion of the award was that the original decretal amount should be treated as the whole sum due and should be paid on four specified dates. The somewhat obscure sentence following upon the prayer that the award should be confirmed may be treated as surplusage and was apparently so regarded by the Court to which the award was submitted. As, in the view I have taken, the decree sought to be executed is one made under sec. 526 of the Code of Civil Procedure, 1882, and is capaple of execution I need not discuss the second question. 35. For the reasons given I should decree this appeal with costs. 36. [Owing to this difference of opinion the case was laid before the Chief Justice for reference to a third Judge. Under secs. 526 of the Code of Civil Procedure, 1882, and is capaple of execution I need not discuss the second question. 35. For the reasons given I should decree this appeal with costs. 36. [Owing to this difference of opinion the case was laid before the Chief Justice for reference to a third Judge. Under secs. 98 and 108 of the Civil Procedure Code, their Lordships stated the point of law on which they differed in the following terms :-- [Should the award and the order of the 18th March 1907 be regarded and treated as an award and order under secs. 525 and 526 of the Civil Procedure Code, 1882, and should the decree of the 25th August 1908 be executed as a decree made in accordance with an award made under the said section.] 37. The Judgment of Chatterjee, J., to whom the point was referred was as follows :- Chatterjee, J. The decree-holder obtained a decree for Rs. 1,360 in the Calcutta Small Cause Court in 1895 and had it transferred to the Court of the Subordinate Judge of Nadia for execution. The seventh application was made in 1906 and was entered as Execution Case No. 108 of 1906 and the seventh objection by the judgment-debtor was numbered as Misc. No. 56 of 1906. Pending this execution the parties applied for referring all matters in dispute between them to the arbitration of Babu Prosanna Kumar Bose, a local pleader, and the Court made the reference accordingly. Before the arbitrator the parties agreed to certain terms under which the decretal amount as it then stood was to be paid in certain instalments failing which the decretal amount could be recovered by the attachment and sale of the properties of the judgement-debtor. The arbitrator asked that the agreement might be confirmed and his report was signed by both the parties. The Judge passed a fresh decree in accordance with this report. The first instalment of Rs. 400 under the new arrangement was paid on the 15th May 1907 just within 12 years of the original decree and the formal decree was signed on the 25th August 1908. The Judge passed a fresh decree in accordance with this report. The first instalment of Rs. 400 under the new arrangement was paid on the 15th May 1907 just within 12 years of the original decree and the formal decree was signed on the 25th August 1908. The decree-holder then applied for executing this decree on the 31st March 1909 for the second instalment and the judgment-debtor at Once turned-round and objected that the decree of 1895 was the only decree that could be executed and the later decree was ultra vires so that execution was barred under sec. 230 of the Civil Procedure Code. The first Court allowed execution to proceed but the District Judge on appeal accepted the objection of the judgment-debtor. On second appeal by the decree-holder there has been a difference of opinion between the two learned Judges before whom the appeal was heard and hence this reference under secs. 98 and 108 of the Civil Procedure Code, Act V of 1908. The decree-holder contended before the learned Judges (1) that the Nadia Court was within its jurisdiction in passing a new decree and its action had in any case warrant under secs. 525 and 526 of the old Civil Procedure Code, (2) that a decree having been already passed the executing Court had no jurisdiction to go behind the decree, (3) that the judgment-debtor was estopped from making the objection that he now made. 38. Mr. Justice Coxe overruled all these objections but Mr. Justice Teunon was of opinion that the first ground was good and did not therefore think it necessary to go into the two other grounds. The point in difference has been stated by the learned Judges as should the award and the order of the 18th March 1907 be regarded and treated as an award and order under secs. 525 and 526 of the C. P. C., 1882, and should the decree of the 25th August 1908 be executed as a decree made in accordance with an award made under the above sections?" The reference is limited in scope in accordance with the provisions of the new Code and I have to deal with this limited question only. 525 and 526 of the C. P. C., 1882, and should the decree of the 25th August 1908 be executed as a decree made in accordance with an award made under the above sections?" The reference is limited in scope in accordance with the provisions of the new Code and I have to deal with this limited question only. This question must however be determined in view of the peculiar circumstances of the case by reference to the peculiar relative positions in which the parties have placed themselves by their conduct and subject to the limitation imposed on permissible contention by reason of such conduct. So approaching the case I think that the judgment-debtor cannot be heard to say that the arbitration initiated at his instance was not an arbitration, that the award consented to by him was not an award or the decree passed in his presence and submitted to by him was not a decree. The Subordinate Judge of Nadia was perfectly competent to deal with the execution case and to dispose of all disputes relating to the execution of the decree. He had therefore what is called inherent jurisdiction over the subject-matter. If he could make a reference of the dispute to an arbitrator, the proceedings were in due course of law. If he could not the reference was an irregularity which could be waived and the party so waiving the irregularity would be barred by his own conduct from complaining of such irregularity afterwards. But supposing the whole action of the Court in reference to the arbitration was ultra vires and null and void, there was nothing in law to prevent the parties from appointing an arbitrator to settle their differences and then the award of the arbitrator would be one within sec. 525 and the decree under 526. Lord Watson in delivering the judgment of the Privy Council in the case of Ledgard v. Bull I. L. R. 9 All. 191 ; s. c. L. R. (sic) I. A. 186 (sic) says "The District Judge was perfectly competent to entertain and try the suit if it were competently brought and their Lordships do not doubt that in such a case a Defendant may be barred by his own conduct from objecting to irregularities in the institution of the suit. 191 ; s. c. L. R. (sic) I. A. 186 (sic) says "The District Judge was perfectly competent to entertain and try the suit if it were competently brought and their Lordships do not doubt that in such a case a Defendant may be barred by his own conduct from objecting to irregularities in the institution of the suit. When the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot by their mutual consent convert it into a proper judicial process, although they may constitute the Judge their arbiter and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when in a cause which the Judge is competent to try, the parties without objection join issue and go to trial upon the merits, the Defendant cannot subsequently dispute his jurisdiction upon the ground that there were irregularities in the initial procedure which, if objected to at the time would have led to the dismissal of the suit." Applying these principles to present case I hold that as between the parties to the case there was an award of the arbitrator which may at the least be a private award under sec. 525, the Court purported to pass a decree which on the above view would be one under sec. 526 of the C. P. Code and the propriety of such a decree cannot be called in question by the judgment-debtor in execution. In the result, therefore, I answer the question asked in the affirmative. The decree-holder is entitled to the costs of this hearing and I assess the same at 2 gold mohurs. [On the case coming on for final disposal, the following judgment was passed by their Lordships Coxe and Teunon, JJ. Appeal No. 308 will be decreed. The order of the District Judge will be set aside and the execution will proceed. The Appellant will be entitled to his costs of this Court, which we assess at two gold mohurs, and of the lower Appellate Court].