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Firm Kachauri Mal-kalyan Mal Vs. Firm Wali Muhammad Abdul Latif - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtAllahabad
Decided On
Reported inAIR1925All154; 85Ind.Cas.341
AppellantFirm Kachauri Mal-kalyan Mal
RespondentFirm Wali Muhammad Abdul Latif
Excerpt:
- .....in this court the opposite party contends that an appeal lay under section 104 of the civil procedure code. the question is whether the provision as to arbitration as laid down in the civil procedure code and schedule 2 has any application to proceedings under the arbitration act of 1899. there is a case decided by a division bench of this court, namely, nainsukh das nagar mal v. gajanand shyam lal a.i.r. 1921 all. 273 in which it was held that in the absence of any rules framed under section 20 in the act of 1899 the provisions of the civil procedure code should be applied. the ground given is that something had to be done and the application of the civil procedure code was not inconsistent with the provisions of the arbitration act. we have every reason for following this.....
Judgment:

1. This is an application in. revision asking this Court to set aside an order passed by the learned District Judge-of Cawnpore on appeal.

2. It appears that the parties to this application are members of a sugar committee. Under the rules framed by the committee to which parties have committed themselves, all disputes arising among them should be referred to arbitration. A dispute arose and it was referred to arbitration. Ignoring this reference the plaintiff brought a suit in the Court of the Subordinate Judge of Cawnpore. The defendant applied under Section 19 of the Arbitration Act (Act IX of 1899) for a stay of the suit pending the making of the award. The Court of first instance ordered a stay. The plaintiff appealed and the learned District Judge has set aside the order. It is contended before this Court by the1 defendant that the District Judge had no jurisdiction to entertain an appeal and that his order should be set aside.

3. The Arbitration Act of 1899 does not provide for an appeal. It is a very short Act and by Section 20 provision for framing rules has been made. It is common ground that this High Court has as yet made no rules on the points referred to in that section. Among other matters a rule-was to be provided for 'the stay of any suit or proceeding in contravention of submission to arbitration'.

4. In this Court the opposite party contends that an appeal lay under Section 104 of the Civil Procedure Code. The question is whether the provision as to arbitration as laid down in the Civil Procedure Code and Schedule 2 has any application to proceedings under the Arbitration Act of 1899. There is a case decided by a Division Bench of this Court, namely, Nainsukh Das Nagar Mal v. Gajanand Shyam Lal A.I.R. 1921 All. 273 in which it was held that in the absence of any rules framed under Section 20 in the Act of 1899 the provisions of the Civil Procedure Code should be applied. The ground given is that something had to be done and the application of the Civil Procedure Code was not inconsistent with the provisions of the Arbitration Act. We have every reason for following this precedent. We are prepared to follow this precedent on even larger grounds. Section 89 of the Civil Procedure Coda says (omitting the first few words) ' all reference to arbitration, whether by an order in a suit or otherwise, and all proceedings thereunder, shall be governed by the provisions contained in the second schedule.'

5. An exception is made in the following terms save in so far as is otherwise provided by the Indian Arbitration Act, 1899, or by any other law for the time being in force.' This would mean that unless the provisions of the Indian Arbitration Act, 1899, or contrary to any of the provisions of the second schedule that schedule must apply to a reference made under the Arbitration Act of 1899. If that be the case it would follow that the provisions of Section 104 of the Code of Civil Procedure will apply, because the Schedule 2 is governed by that section. There can be no force in a contention that, while the second schedule may be applied the main provisions of the Code by which orders passed under the second schedule are made appealable should not apply. We hold that the appeal to the District Judge was competent.

6. We dismiss the application in revision with costs which will include Counsel's fees in this Court on the higher scale.


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