JUDGMENT : Soumen Sen, J. The judgment debtor is the applicant. 1. The judgment debtor has filed this application under Section 47 of the Code of Civil Procedure challenging the executability of a decree passed by the appellate court on 22nd August, 2013. 2. The appellate court granted a decree for specific performance which the arbitrator as well as the trial court had declined. 3. The arbitrator although had arrived at a finding that the claimant/decree-holder is ready and willing to perform its obligation and would be otherwise entitled to specific performance of the development agreement but had declined to exercise discretion in favour of the claimant/decree-holder. In an application for setting aside of the award, the trial court declined to interfere with the award and upheld the discretion exercised by the arbitrator. However, the appellate court interfered with the award and the relevant portion of the order of the appellate court reads:- “On a close look to the decisions cited at the at the bar and discussed above, we feel, in a contract of the like nature, once the arbitrator was satisfied the developer was entitled to specific performance the relief could not be denied on the grounds mentioned therein. The arbitrator categorically held, the developer was ready and willing to perform their obligation. They had the capacity to do so. The sentimental or emotional reason cannot create any impediment in performing the same. The arbitrator talked about non-cooperation on the part of the owner. Mr. Deb rightly contended in case owner would not demolish the developer would demolish the same with the Court’s supervision. We fully agree with Mr. Bachawat, on the plea of Natural Justice, the arbitrator should not have allowed the developer to submit a chart at the fag end of the arbitration. In any event, the arbitrator recorded, she did not rely on the said chart. ON the top of it, at the time of hearing, Mr. Deb categorically made it clear. The developer was not interested in pecuniary damage. Hence, such issue would be academic. While giving reply, Mr. Bachawat relied upon Yeshwantrao ganpatrao (Supra), the paragraph relied on by him quoted (Supra) would not be of any assistance to us. The Division Bench observed, the Court considering the award could not travel beyond the award. It had no jurisdiction to attach list to its decree that was not attached to the original award. While giving reply, Mr. Bachawat relied upon Yeshwantrao ganpatrao (Supra), the paragraph relied on by him quoted (Supra) would not be of any assistance to us. The Division Bench observed, the Court considering the award could not travel beyond the award. It had no jurisdiction to attach list to its decree that was not attached to the original award. We fail to appreciate. The developer approached the arbitrator with the principal prayer for specific performance of the agreement dated January 28, 1989. If we look to page-215 (Volume-III) we would find the same appearing in the statement of claim. The learned arbitrator declined to grant such relief, learned Judge while considering the award also declined. The Court of appeal being an extension of the original proceeding would certainly be competent to examine the award as to whether the arbitrator committed any illegality in not granting the said relief. The scope of judicial scrutiny on this score is limited however, it would not be right to say, this Court would not be competent to consider such prayer. We reject the contention of Mr. Bachawat on that score. On the scope of the Court's power to set aside the award under the old law we are of the view, once the arbitrator considered the issue, applied her mind, analyze the evidence and came to final conclusion, the developer was not at fault such definite finding would not be available for judicial scrutiny. It could neither be called as perverse nor devoid of cogent evidence. The Court, while considering an application for setting aside of the award, is not entitled to substitute their own reasoning. The Court could only interfere when the award was a product of miscarriage of Justice shocking the conscience of the Court. Such is not the case here.” 4. The order of the appellate court was unsuccessfully challenged before the Hon’ble Supreme Court. The special leave petition preferred by the judgment-debtors was dismissed on 27th January, 2014 by a one line order “the Special Leave Petitions are dismissed”. 5. The executability of the said appellate decree is now being challenged by the judgment-debtors in this proceeding. 6. Mr. Ajoy Krishna Chatterjee, the learned Senior Counsel appearing with Mr. The special leave petition preferred by the judgment-debtors was dismissed on 27th January, 2014 by a one line order “the Special Leave Petitions are dismissed”. 5. The executability of the said appellate decree is now being challenged by the judgment-debtors in this proceeding. 6. Mr. Ajoy Krishna Chatterjee, the learned Senior Counsel appearing with Mr. Sabyasachi Chowdhury, Advocate, appearing for the decree-holder submits that the appellate decree is inexecutable in view of the fact that the appellate court has exercised a power not vested in it under the law, the appellate decree is a nullity. 7. It is submitted that a Court while considering the validity of an award under the old Act of 1940 can do any of the following:- (a) Affirm the award. (b) Set aside the award. (c) Modify the award. (d) Remit the award. 8. Apart from the aforesaid, the Court does not have any power in relation to an award. The appellate court was not competent to pass an appellate decree. The appellate court having not followed any of the aforesaid four courses open to it has acted without jurisdiction resulting in a void decree which is unenforceable. 9. The learned Senior Counsel has referred to a Single Bench decision of this Court in Mahendranath Khundu vs. Suresh Chandra Pramanik reported at AIR 1925 Cal 332 and Union of India v. Badridas Kedia reported at AIR 1981 Cal 341 , M/s. All India Institute of Medical Sciences, New Delhi, Vs. M/s. American Refrigeration Co. Ltd., New Delhi & Anr. reported at AIR 1982 Del 275 and The Upper Ganges Valley Electricity Supply Co. Ltd. Vs. The U.P. Electricity Board reported at AIR 1973 SC 683 to argue that it has been judicially recognized by the judicial decisions on various High Courts including the Supreme Court that the Court does not have any jurisdiction to pass a decree. 10. The learned Senior Counsel has referred to the observation of Justice Mookerjee in Mahendranath Khundu (supra) which reads:- “But even then the Court had no power to rectify or correct the award unless the award was imperfect in form or the obvious error was of such a character that it could be amended without affecting the decision of the arbitrator. The learned Senior Counsel has referred to the observation of Justice Mookerjee in Mahendranath Khundu (supra) which reads:- “But even then the Court had no power to rectify or correct the award unless the award was imperfect in form or the obvious error was of such a character that it could be amended without affecting the decision of the arbitrator. It is well settled that a Court acts without jurisdiction if it modifies an award because it takes a view different from that held by the arbitrator.” 11. as well as the observation of the Delhi High Court in American Refrigeration (supra) Paragraph 23 which reads:- “23. There remains the question of amending the award. In this case the learned judge amended the award. He awarded a sum of Rs. 2,56,787.50/- to the contractor himself. Can this be done by a Court? The Court can either set aside the award or sustain the award. Or it can remit the award. Or act on the principle of severability. But it cannot amend the award and Substitute its own decision in lieu of the arbitrator's decision. The learned judge relied upon Upper Gangas Velley Electricity Supply Co. Ltd. v. U.P. Electrictity Board. and said that in similar circumstances the Supreme Court had amended the award. This is a mis-reading of that case. Upper Ganges Valley was a decision on special facts. That was a case of a speaking award. There was a mistake in calculation. The Supreme Court amended the award in the special circumstances of the case. They decided the point of law and themselves calculated the compensation instead of remitting the award to the arbitrator. The Court expressly said that normally the award should have been remitted to the arbitrator.” 12. The learned Senior Counsel referring to Paragraph 26 in The Upper Ganges (supra) submits that it would appear from the said Paragraph that on concession the award was amended and it cannot be contended that the Court, in fact, has passed an award in supersession of the available courses that are open to the Court. The said Paragraph 26 reads:- “26. Normally, we would have remitted the award for a decision in the light of our judgment but that is likely to involve undue delay and expense in a dispute which is pending since 1959. Learned counsel for the appellant was agreeable that we should ourselves amend the award. The said Paragraph 26 reads:- “26. Normally, we would have remitted the award for a decision in the light of our judgment but that is likely to involve undue delay and expense in a dispute which is pending since 1959. Learned counsel for the appellant was agreeable that we should ourselves amend the award. Learned counsel for the respondent demurred but-he was unable to indicate any cogent reason why we should not adopt a course which. far from causing any prejudice to the parties, was clearly in the interests of justice.” 13. It is submitted that in a proceeding under Section 47 of the Code of Civil Procedure, the Court can always go into the question of executability of the decree and in this regard has referred to a Single Bench decision in M/s. Saraswat Trading Agency v. Union of India & Ors. reported at AIR 2004 Cal 267 Paragraph 8 in which it was held that the Court in a proceeding under Section 47 of the Code of Civil Procedure can consider whether the resultant award is a product of an invalid reference. The paragraph 8 on which reliance has been place is:- “8. On the basis of the authorities cited at the bar, I find substantial force in Mr. Chatterjee's submission. It was held in Prabartak Commercial Corporation's case that an award made by the Arbitrator on the basis of an invalid reference would be null and void. That means, if the reference is bad, then the award also becomes bad, irrespective of whether the parties participate in the arbitral proceeding or not. The validity of Clauses 24(b) and 32(a) of the contract have not been questioned before me. It is true that in M/s. A.K. Pal's case (unreported decision) Aloke Chakrabarti, J was pleased to sustain the validity of an identical clause in a contract. But then, in the present case, in the absence of any challenge to the validity of the two clauses, I find no necessity to examine their validity. The decree-holder has accepted the terms and conditions in the contract to be correct. In Popular Builders's case, the Supreme Court allowed the Union of India (that suffered the award made by the Arbitrator) to raise the question of validity of the reference for the first time in the Supreme Court. The decree-holder has accepted the terms and conditions in the contract to be correct. In Popular Builders's case, the Supreme Court allowed the Union of India (that suffered the award made by the Arbitrator) to raise the question of validity of the reference for the first time in the Supreme Court. It was held that since existence of an arbitrable dispute was the condition precedent for exercise of power for appointment of an Arbitrator under the relevant clause, and the reference was made in violation of the terms and conditions of the relevant arbitration clause, the award was to be set aside. In Om Prakash's case it was clearly held by the Supreme Court that an award on an invalid reference would be a nullity. There can be no dispute regarding the proposition that in an application under Section 47 of the Code of Civil Procedure, the question that a decree is not executable being a nullity can be raised, and the executing Court can decide the question. I find that in Jagat Ram Trehan's case in an almost similar situation the Section 47 application filed by the Union of India which had suffered the award was allowed by the Division Bench of the Delhi High Court.” 14. The attention of the Court is also drawn to a line from Russel on Arbitration, 20th Edn. Page 349 which reads:- “The Court has no power to alter or amend an award, it can only set it aside or remit it to the arbitrator” 15. The next argument was next that the dismissal of the Special Leave Petition does not give finality to the appellate court order nor it can be affected the pending proceeding. The order of the Supreme Court is a one line order without any reason. The learned senior Counsel has referred to the decision of the Hon’ble Supreme Court in Kunhayammed & Ors. Vs. State of Kerala & Anr. reported at (2000) 6 SCC 359 Paragraph 41 to 44 and Bhaskaran v. Sreedharan reported at JT 2002 (3) SC 568 Paragraph 5. Much emphasis is laid on Paragraphs 41 to 44 of Kunhayammed (supra) which read:- “41.Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Much emphasis is laid on Paragraphs 41 to 44 of Kunhayammed (supra) which read:- “41.Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court. 42. To merge means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-1068) 43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage. 44. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage. 44. To sum up our conclusions are :- (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal. (iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a revew petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C.” “5. On perusal of the compromise decree, it is clear that each party was required to fulfill certain conditions for acquiring the share of the other party in the property. In such a case, if there was default on the part of any party in complying with the conditions then the other party could seek the assistance of the executing court for compliance of the decree. Therefore, the compromise decree became executable at the instance of a party on the default committed by the other party. In such a case, if there was default on the part of any party in complying with the conditions then the other party could seek the assistance of the executing court for compliance of the decree. Therefore, the compromise decree became executable at the instance of a party on the default committed by the other party. Assuming that there was some doubt on account of the involved nature of the compromise decree, the matter was clarified by the High Court in its judgment dated 1st November, 1985. Even taking this date to be the starting point of limitation then also the E.P. filed in 1999 is barred by limitation. It cannot be said that by merely filing the SLP in this Court the period of limitation, which stood extended till disposal of the SLP which was dismissed in limine. This Court has from time to time clarified that dismissal of a SLP does not amount to confirmation of the judgment/order of the High Court on merits. It only means that this Court did not consider the case to be fit for grant of leave under Article 136 of the Constitution. Therefore, the High Court was clearly in error in holding that the period of limitation for filing the execution petition in the case stood extended till disposal of the SLP by this Court and on that basis holding that the execution petition filed by the respondent was not barred by limitation. The order is clearly unsustainable.” 16. It is submitted that in order to sustain the enforceability of the award, it has to be established that not only the Court receiving the proceeding had the jurisdiction to accept it but must also have the authority to pass the order sought for, an argument, inspired by the observation in Paragraph 15 of Official Trustee, West Bengal & Ors. Vs. Sachindra Nath Chatterjee & Anr. reported at AIR 1969 SC 823 which reads as follows:- “15. From the above discussion it is clear that before a Court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass, the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject matter of the suit. It is not sufficient that it has some jurisdiction in relation to the subject matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties. Therefore the fact that Ramfry, J. had jurisdiction to pass certain orders either under the Indian Trust Act, 1882 or under the Official Trustees Act, 1913 or under the Trustees and Mortgages Powers Act, 1866 or under his inherent power is not conclusive of the matter. What is relevant is whether he had the power to grant the relief asked for in the application made by the settlor. That we think is the essence of the matter. It cannot be disputed that if it is held that the learned judge had competence to pronounce on the issue presented for his decision then the fact that he decided that issue illegally or incorrectly is wholly beside the point. See Ittavira Mathai v. Varkey Varkey, 1964-1 SCR 495 = ( AIR 1964 SC 907 ). Therefore we have now to see whether the learned judge had jurisdiction to decide the issue presented for his determination. The relief prayed for, as seen earlier, was to Permit the settlor to revoke particular clauses in the Trust deed and to authorise him to alter the quantum of interest given to each of the beneficiaries by a deed inter vivos. Had the learned judge jurisdiction to entertain those pleas?” 17. The judgment of the Hon’ble Supreme Court in Kiran Singh & Ors. Vs. Chaman Paswan & Ors. reported at AIR 1954 SC 340 was also cited in the same vein. 18. Per contra, Mr. Ranjan Deb, the learned Senior Counsel appearing with Mr. Surajit Nath Mitra, Senior Advocate appearing for the judgment-debtors submitted that this application is an attempt to frustrate the award which has attained its finality. It is submitted that the applicant is not disputing that the Division Bench had the authority to try, receive and determine the issue but had questioned the propriety of the order. Surajit Nath Mitra, Senior Advocate appearing for the judgment-debtors submitted that this application is an attempt to frustrate the award which has attained its finality. It is submitted that the applicant is not disputing that the Division Bench had the authority to try, receive and determine the issue but had questioned the propriety of the order. It is submitted that the decisions relied upon by the petitioner would show that under a decree or an order can be resisted in execution provided the said decree is passed without jurisdiction meaning thereby the Court passed the decree either does not have pecuniary or territorial or jurisdiction over the subject-matter of the disputes. 19. In the instant case, the Appellate Authority decided the appeal in a particular way. Even if it is assumed for the sake of argument that the Appellate Court has committed an error it is an error within its jurisdiction, and the said order cannot be set at naught on the ground that the said decree is void. 20. Mr. Deb made a distinction between a decree passed by a Court without jurisdiction, that is to say, where jurisdiction is assumed by a Court where there is absolute want of it and wrong exercise of jurisdiction, that is to say where the Court in exercise of its jurisdiction acted wrongly. Mr. Deb has referred to a Division Bench judgment of this Court in Ishan Chandra Banikya v. Moomraj Khan reported at 30 CWN 940 at Pages 941 and 942 and submits that this distinction was discussed with lot of erudiction by the Hon’ble Division Bench which summarized law on this point. The Paragraphs on which reliance has been placed by Mr. Deb are stated below:- “There cannot be any question that a decree passed without jurisdiction is a nullity. But the expression "jurisdiction" has not un-often been used with ambiguity, and the distinction between a judgment where jurisdiction is assumed by the Court where there is absolute want of it, and where the Court in the exercise of its jurisdiction acted wrongly in disregard of the law has not always been borne in mind. This want of discrimination in the use of the term has resulted in a good deal of confusion. This want of discrimination in the use of the term has resulted in a good deal of confusion. The distinction between a defect of jurisdiction and an error or irregularity in procedure is pointed out in Hawes on the Jurisdiction of Courts thus:--"In the former case the whole proceeding is coram non judice and void: in the latter the proceeding cannot be impugned as a collateral action, even though it be erroneous upon its face, and even though it relates to a fact which in a former stage of the proceeding might have been essential to confer jurisdiction. It is examinable only on a direct proceeding as by an appeal or by a proceeding in the nature of an appeal, and where there is no remedy of that kind, it concludes forever." In Hukum Chand's well-known treatise on the Law of Res Judicata (at page 473), the rule is stated thus:--"It is only when a Court of general jurisdiction undertakes to grant a judgment in an action or proceeding where it has not (sic no) jurisdiction of the parties or the subject-matter of the action, and this appears from the record by its terms or necessary implication, or by the absence of something essential, that the judgment will be absolutely void, and have no effect. When jurisdiction attaches in the original case, everything done within the exercise of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, and no order which a Court is empowered, under any circumstances in the course of a proceeding over which it has jurisdiction, to make, can be treated as a nullity, merely because it was made improvidently or in a manner not warranted by law or the previous state of the case." In Woodroffe and Ameer Ali's Law of Evidence (8th Edition, page 413) the rule is thus summarised:--"It cannot be said that wherever a decision is wrong in law or violates a rule of procedure, the Court must be held incompetent to deliver it. It has never been and could not be held that a Court, which erroneously decrees a suit which it should have dismissed as time-barred or as barred by the rule of res judicata, acts without jurisdiction and is not competent to deliver its decree." This statement of the law was mainly founded on the judgment of Stratchey, C.J., in the Full Bench case of Caston v. Coston 22 A. 270 : A.W.N. (1900) 59 : 9 Ind. Dec. (N.S.) 1212 (F.B.) and was cited with approval by Stanley, C.J., and Burkitt, J., in Nathu Ram v. Kalian Dass 26 A. 522 : 1 A.L.J. 217. The rule may also be formulated in this way, that if some essential preliminary is required before a Court can entertain a suit or application and that doss not exist, the judgment of the Court assuming jurisdiction in such a case is a nullity. The cases of Nusserwanjee Pestonjee v. Meer Mynoodeen Khan 6 M.I.A. 134 : 19 E.R. 50 and Raghunath Das v. Sundar Das Khetri 24 Ind. Cas. 304 : 41 I.A. 251 : 42 C. 72 : 18 C.W.N. 1058 : 1 L.W. 567 : 27 M.L.J. 150 : 16 M.L.T. 353 : (1914) M.W.N. 747 : 16 Bom. L.R. 814 : 20 C.L.J. 555 : 13 A.L.J. 154 (P.C) are examples of this type. But where the Court has jurisdiction to entertain the matter but decides the case erroneously without having regard to the provisions of the law, the judgment is not a nullity but must have due effect if it is not set aside by appropriate proceedings.” (emphasis added) 21. It is submitted that a defect of jurisdiction whether it is pecuniary or territorial or whether it is a subject matter of the case strikes the very authority of the Court to pass any decree and such a decree cannot be cured even by consent of the parties but when there is no inherent lacks of jurisdiction, the decree cannot be invalidated merely because the Court has decided the matter on wrong principle of law. The said submission is based on the principle laid down in Delhi Cloth & General Mills Co. Ltd. v. Ramjidas Shriram & Ors. reported at AIR 1982 Cal 34 . The said submission is based on the principle laid down in Delhi Cloth & General Mills Co. Ltd. v. Ramjidas Shriram & Ors. reported at AIR 1982 Cal 34 . It has been held in the said decision that the only scrutiny the Court is required to make in such a situation is to find out if the Court which had passed the decree has jurisdiction to receive, try and determine the suit. The executing Court cannot go behind the decree even if the decree is erroneous of law or on facts except when the decree is made by a Court which has no inherent jurisdiction to make it. Objection as to its validity in such circumstances cannot be raised in execution. 22. Mr. Deb has relied upon Shiv Chander Kapoor Vs. Amar Bose reported at (1990) 1 SCC 234 in order to bring about a distinction between the void and voidable orders and also to show that even an ultra vires order remains enforceable unless necessary proceedings are taken to establish cause of its invalidity and get it quashed or otherwise upset. This judgment is cited in answer to Mr. Chatterjee’s submission that mere dismissal of the Special Leave Petition does not affect the jurisdiction of this Court to consider the invalidity of the award on the ground that the Appellate Court has acted without a jurisdiction as it did not follow the four courses open to the Court while considering an application for setting aside of an award under the 1940 Act. The learned Senior Counsel has referred to Paragraph 23 of the said report which reads:- “23. In Wade's Administrative Law, 6th Edn. at pp 35 1-353, there is an illuminating discussion of this topic. It has been pointed out that 'void' is meaningless in an absolute sense; and 'unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders'. In the words of Lord Diplock, "the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue". 23. In the words of Lord Diplock, "the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue". 23. It is submitted that it is a trite law that a Court having jurisdiction over the subject-matter of the lis and over the parties though would be expected to decide the matter rightly but may decide it wrongly and even though it decided wrongly, it would not be doing something which it had no jurisdiction to do. If it had the jurisdiction over the subject-matter and it had jurisdiction over the party merely because it made an error in deciding a vital issue it cannot be said that it had acted beyond its jurisdiction. 24. Mr. Deb refers to the following observation of the Hon’ble Supreme Court in Ittyavira Mathai Vs. Varkey Varkey & Anr. reported at AIR 1964 SC 907 :- “As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullifies. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmed v. Onkar Pratap Narain, and contended that since the court is bound under the provisions of s. 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. Act that the decision relied upon says that s. 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The privy council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.” (emphasis added) 25. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.” (emphasis added) 25. Drawing inspiration from the said judgment it is submitted that the Appellate Court under the facts and circumstances thought that a discretion in favour of the appellant should have been exercised by the arbitrator and had the power to pass a discretionary relief at the appellate state as the appeal is a continuation of the original proceeding. This exercise of jurisdiction cannot be treated to be an inherent lack of jurisdiction going to the very root of the matter. This judgment remains until valid and enforceably set aside by a superior court. The Special Leave Petition has been dismissed. In the Special Leave Petition, all such objections were raised. In view thereof the issues raised and has become resjudicata between the parties for all purposes and at this stage it cannot be contended that the said decree is inexecutable on the ground that the appellate Court has no jurisdiction to pass a decree. 26. Mr. S.N. Mitra, the learned Senior Counsel appearing with Mr. Deb, has distinguished the decisions cited by Mr. Chatterjee. It is submitted that all the decisions would show that the Court, in fact, lack the jurisdiction either pecuniary or territorial or over the subject-matter of the dispute. The role of the executing Court is extremely limited. It cannot go behind the decree. Unless it is manifest that the decree and/or the order passed by the Court is void on either of the three scores which invalidate an order and/or a decree, the decree remains executable and the executing Court cannot question the wisdom and/or propriety of such a decree. 27. The question relates to the executability of a decree passed by the Appellate Court in a proceeding arising out of setting aside of an award under the 1940 Act. 28. This question needs to be addressed within the scope of Section 47 of the Code of Civil Procedure. 29. The Section presupposes the existence of a decree which is capable of execution. It does not, inter alia, apply to cases where the decree sought to be executed is neither a nullity or declaratory in character. 28. This question needs to be addressed within the scope of Section 47 of the Code of Civil Procedure. 29. The Section presupposes the existence of a decree which is capable of execution. It does not, inter alia, apply to cases where the decree sought to be executed is neither a nullity or declaratory in character. If a Court passing a decree has no inherent jurisdiction, the decree is a nullity. A decree passed by a Court without jurisdiction is no decree and, therefore, not executable. If the Court which passes the decree lacks inherent jurisdiction the decree would obviously be a nullity and can be challenged at the stage of execution. In such a case, an executing Court does not go behind the decree since there is no decree at all in the eye of law. Once the question for want of jurisdiction is raised and overruled, it cannot be raised again and would be treated inter-parties that the Court had inherent jurisdiction. 30. Halsbury’s Laws of England, 4th Edition, (Re-issue), Vol.10 summarizes the concept of jurisdiction in Paragraph 314 at Page 132. The said Paragraph reads:- “314. Meaning of ‘jurisdiction’. By ‘jurisdiction’ is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of the authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by similar means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the claims and matters of which the particular court has cognizance, or as to the area over which the jurisdiction extends, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal, including an arbitrator, depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist, the correctness of its decision may be inquired into by means of proceedings for judicial review. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” (emphasis added) 31. The power of the executing Court to invalidate a decree on the ground of nullity has been lucidly explained by the Hon’ble Supreme Court in Sunder Dass Vs. Ram Prakash reported at (1977) 2 SCC 662 , Paragraph 3. The law, thus, stated:- “3. Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and whenever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan and Seth Hiralal Patni v. Sri Kali-Nath. It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent.” 32. The exercise of powers under Section 47 of the Code of Civil Procedure also came up for consideration in Dhurandhar Prasad Singh Vs. Jai Prakash University & Ors. reported at (2001) 6 SCC 534 . 33. The exercise of powers under Section 47 of the Code of Civil Procedure also came up for consideration in Dhurandhar Prasad Singh Vs. Jai Prakash University & Ors. reported at (2001) 6 SCC 534 . 33. The Hon’ble Supreme Court after considering catena of decisions on this point both in India and England held that the exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. The expressions “void” and “voidable” were considered in Paragraphs 16 to 21 of the said report and on consideration of the authorities on this point in Paragraph 22, law was, thus, summarized:- “16. The expressions void and voidable have been subject matter of consideration before English Courts times without number. In the case of Durayappah v. Fernando and others [1967] 2 All England Law Reports 152, the dissolution of municipal council by the minister was challenged. Question had arisen before the Privy Council as to whether a third party could challenge such a decision. It was held that if the decision was complete nullity, it could be challenged by anyone, anywhere. The Court observed at page 158 E-F thus:- “The answer must depend essentially on whether the order of the Minister was a complete nullity or whether it was an order voidable only at the election of the council. If the former, it must follow that the council is still in office and that, if any councillor, ratepayer or other person having a legitimate interest in the conduct of the council likes to take the point, they are entitled to ask the court to declare that the council is still the duly elected council with all the powers and duties conferred on it by the Municipal Ordinance.” 17. In the case of In re McC. In the case of In re McC. (A minor) [ 1985 ] 1 Appeal Cases 528, the House of Lords followed the dictum of Lord Coke in the Marshalsea Case quoting a passage from the said judgment which was rendered in 1613 where it was laid down that where the whole proceeding is coram non judice which means void ab initio, the action will lie without any regard to the precept or process. The Court laid down at page 536 thus:- “Consider two extremes of a very wide spectrum. Jurisdiction meant one thing to Lord Coke in 1613 when he said in the Marshalsea Case (1613) 10 Co. Rep.68b, at p.76a: ‘…when a court has jurisdiction of the cause, and, proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the court who executes the precept or process of the court, no action lies against them. But when the court has not jurisdiction of the cause, there the whole proceeding is coram non judice, and actions will lie against them without any regard of the precept or process…’ (emphasis added) The Court of the Marshalsea in that case acted without jurisdiction because, its jurisdiction being limited to members of the Kings household, it entertained a suit between two citizens neither of whom was a member of the Kings household. Arising out of those proceedings a party arrested by process of the Marshalsea could maintain an action for false imprisonment against, inter alios, the Marshal who directed the execution of the process. This is but an early and perhaps the most quoted example of the application of a principle illustrated by many later cases where the question whether a court or other tribunal of limited jurisdiction has acted without jurisdiction (coram non judice) can be determined by considering whether at the outset of the proceedings that court had jurisdiction to entertain the proceedings at all. So much is implicit in the Lord Cokes phrase ‘jurisdiction of the cause’.” 18. In another decision, in the case of Director of Public Prosecutions v. Head [1959] Appeal Cases 83, House of Lords was considering validity of an order passed by Secretary of the State in appeal preferred against judgment of acquittal passed in a criminal case. So much is implicit in the Lord Cokes phrase ‘jurisdiction of the cause’.” 18. In another decision, in the case of Director of Public Prosecutions v. Head [1959] Appeal Cases 83, House of Lords was considering validity of an order passed by Secretary of the State in appeal preferred against judgment of acquittal passed in a criminal case. The Court of Criminal Appeal quashed the conviction on the ground that the aforesaid order of Secretary was null and void and while upholding the decision of the Court of Criminal Appeal, the House of Lords observed at page 111 thus:- “This contention seems to me to raise the whole question of void or voidable: for if the original order was void, it would in law be a nullity. There would be no need for an order to quash it. It would be automatically null and void without more ado. The continuation orders would be nullities too, because you cannot continue a nullity. The licence to Miss Henderson would be a nullity. So would all the dealings with her property under Section 64 of the Act of 1913. None of the orders would be admissible in evidence. The Secretary of State would, I fancy, be liable in damages for all of the 10 years during which she was unlawfully detained, since it could all be said to flow from his negligent act; see section 16 of the Mental Treatment Act, 1930. But if the original order was only voidable, then it would not be automatically void. Something would have to be done to avoid it. There would have to be an application to the High Court for certiorari to quash it.” 19. This question was examined by Court of Appeal in the case of R. v. Paddington Valuation Officer and another, Exparte Peachey Property Corporation, Ltd. [1965] 2 All England Law Reports 836 where the valuation list was challenged on the ground that the same was void altogether. On these facts, Lord Denning, M.R. laid down the law observing at page 841 thus:- “It is necessary to distinguish between two kinds of invalidity. The one kind is where the invalidity is so grave that the list is a nullity altogether. In which case there is no need for an order to quash it. It is automatically null and void without more ado. The one kind is where the invalidity is so grave that the list is a nullity altogether. In which case there is no need for an order to quash it. It is automatically null and void without more ado. The other kind is when the invalidity does not make the list void altogether, but only voidable. In that case it stands unless and until it is set aside. In the present case the valuation list is not, and never has been, a nullity. At most the first respondent- acting within his jurisdiction-exercised that jurisdiction erroneously. That makes the list voidable and not void. It remains good until it is set aside.” (emphasis added) 20. De Smith, Woolf and Jowell in their treatise Judicial Review of Administrative Action, Fifth Edition, paragraph 5-044, has summarised the concept of void and voidable as follows: “Behind the simple dichotomy of void and voidable acts (invalid and valid until declared to be invalid) lurk terminological and conceptual problems of excruciating complexity. The problems arose from the premise that if an act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it is intra vires it was, of course, valid. If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to be voidable; that is, valid till set aside on appeal or in the past quashed by certiorari for error of law on the face of the record.” (emphasis added) 21. Clive Lewis in his works Judicial Remedies in Public Law at page 131 has explained the expressions void and voidable as follows:- “A challenge to the validity of an act may be by direct action or by way of collateral or indirect challenge. A direct action is one where the principal purpose of the action is to establish the invalidity. This will usually be by way of an application for judicial review or by use of any statutory mechanism for appeal or review. Collateral challenges arise when the invalidity is raised in the course of some other proceedings, the purpose of which is not to establish invalidity but where questions of validity become relevant.” 22. Thus the expressions void and voidable have been subject matter of consideration on innumerable occasions by courts. The expression void has several facets. Collateral challenges arise when the invalidity is raised in the course of some other proceedings, the purpose of which is not to establish invalidity but where questions of validity become relevant.” 22. Thus the expressions void and voidable have been subject matter of consideration on innumerable occasions by courts. The expression void has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is good transaction against the whole world. So far the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as apparent state of affairs is real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable.” (emphasis added) 34. The expressions “void” decree and “illegal, incorrect or irregular” decree came up for consideration in Balvant N. Viswamitra & Ors. Vs. Yadav Sadashiv Mule & Ors. reported at (2004) 8 SCC 706 . The Hon’ble Supreme Court after considering the earlier decisions, thus, summarized the law in Paragraphs 9, 14 and 15 which read:- “9. The expressions “void” decree and “illegal, incorrect or irregular” decree came up for consideration in Balvant N. Viswamitra & Ors. Vs. Yadav Sadashiv Mule & Ors. reported at (2004) 8 SCC 706 . The Hon’ble Supreme Court after considering the earlier decisions, thus, summarized the law in Paragraphs 9, 14 and 15 which read:- “9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be 'null and 'void'. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings. (emphasis added) 14. Suffice it to say that recently a bench of two-Judges of this Court has considered the distinction between null and void decree and illegal decree in Rafique Bibi v. Sayed Waliuddin, [2004] l SCC 287. One of us (R.C. Lahoti, J. as his Lordship then was), quoting with approval the law laid down in Vasudev Dhanjibhai Modi, stated: “6. What is 'void' has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go behind the decree must prevail. (emphasis added) 7. Two things must be clearly borne in mind. (emphasis added) 7. Two things must be clearly borne in mind. Firstly, 'the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be a 'a nullity' and 'void' but these terms have not absolute sense: their meaning is relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results.' (Administrative Law, Wade and Forsyth, 8th Edn., 2000, p. 308). Secondly, there is a distinction between mere administrative orders and the decrees of courts, especially a superior court. 'The order of a superior court such as the High Court must always be obeyed no matter what flaws it may be thought to contain. Thus, a party who disobeys a High Court injunction in punishable for contempt of court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time-limit.' (ibid., p. 312) 8. A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the common of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings." (emphasis supplied) 15. From the above decisions, it is amply clear that all irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings.” 35. The award would have been void and unenforceable if it were a non-arbitrable dispute as summarized in Booz Allen And Hamilton Inc. Vs. SBI Home Finance Ltd & Ors. reported at (2011) 5 SCC 532 has given examples of non-arbitrable disputes which are:- “36. The award would have been void and unenforceable if it were a non-arbitrable dispute as summarized in Booz Allen And Hamilton Inc. Vs. SBI Home Finance Ltd & Ors. reported at (2011) 5 SCC 532 has given examples of non-arbitrable disputes which are:- “36. The well-recognized examples of non-arbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding-up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.” 36. An affirmation of such an invalid award even by the appellate authority would not validate such award as the arbitrator would lack inherent jurisdiction to decide the dispute. The whole proceeding then becomes coram non judice, which is not the case in hand. 37. The objection raised by the petitioner, in my view, does not come within the purview of Section 47 of the Code of Civil Procedure. The appellate decree is not invalidated for want of jurisdiction. The power of the Appellate Court to pass such an appellate decree appears to have been argued before the Appellate Court and the Appellate Court has overruled such objection. It becomes a res judicata between the parties. The appellate Court has given its own reasoning. The petitioner would invite this Court to re-examine the scope and power of the Appellate Court in granting such relief. This is not permissible in law. This Court is not exercising appellate jurisdiction over the appellate decree. Moreover, all these objections were canvassed before the Hon’ble Supreme Court. The Special Leave Petition was dismissed. Although, the order of the Hon’ble Supreme Court is a one line order of dismissal but the issues raised becomes res judicata amongst the parties. 38. Both the parties have relied upon Paragraphs 25 and 26 of the decision of the Hon’ble Supreme Court in The Upper Ganges Valley (supra). The said Paragraphs read:- “25. Although, the order of the Hon’ble Supreme Court is a one line order of dismissal but the issues raised becomes res judicata amongst the parties. 38. Both the parties have relied upon Paragraphs 25 and 26 of the decision of the Hon’ble Supreme Court in The Upper Ganges Valley (supra). The said Paragraphs read:- “25. We are not disposed to hold, as contended by the respondent, that if a part of the award be found to be invalid, the entire award should be set aside and remitted back for a fresh decision. The error which has occurred in the award of the Umpire relates to a matter which is distinct and separate from the rest of the award. 26. The part which is invalid being severable from that which is valid, there is no justification for setting aside the entire award. Normally, we would have remitted the award for a decision in the light of our judgment but that is likely to involve undue delay and expense in a dispute which is pending since 1959. Learned counsel for the appellant was agreeable that we should ourselves amend the award. Learned counsel for the respondent demurred but he was unable to indicate any cogent reason why we should not adopt a course which, far from causing any prejudice to the parties, was clearly in the interests of justice.” 39. In the instant case, it appears that the petitioner has failed to indicate before the Division Bench any cogent reason for remitting the award. The Division Bench has recorded a reason for not remitting the award. The Appellate Court has exercised discretion in favour of the award holder and passed a decree. The issue has been conclusively decided and does not require any fresh consideration in the hands of the arbitrator. The arbitrator could not have passed any other order, save and except, an award for specific performance in view of a clear finding of the Appellate Court that the discretion should have been exercised in favour of the award holder. The petitioner has failed to give any satisfactory explanation for the course adopted by the Appellate Court in passing an appellate decree as remitting the award to the arbitrator would not make any difference and it has now become a fait accompli. 40. In view thereof, this Court finds no reason to declare the decree as a nullity. This application fails. 40. In view thereof, this Court finds no reason to declare the decree as a nullity. This application fails. However, there shall be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties on usual undertaking.