R.S. Pathak, C.J.
1. This appeal is directed against the order of our brother Chet Ram Thakur granting an Interim injunction during the pendency of an application under Section 20 of the Indian Arbitration Act.
2. The respondent. M/s. H. S. Sobti and Co., had entered into a contract with the appellants, for the construction of a Girls Hostel for tbe Medical College at Simla. The respondent could not complete the work within the stipulated period as, according to him. the progress of the work was impeded. The raspondent complained that money lawfully due to him was being withheld by the appellants and tlie security of Rs. 20,000/-furnished by him hod also been forfeited. He also complained that the contract had been rescinded by tbe appellants. Accordingly, he applied under Section 20 of the Indian. Arbitration Act in this Court. While the application under Section 20 was pending, the respondent also applied for an interim Injunction under Rules 1 and 2 of Order 39 read with Sections 141 and 151 of the Code of Civil Procedure. The application for injunction came on before our brother Chet Ram Thakur, and repelling an objection to the contrary he held that by virtue of Section 41 (b) of the Indian Arbitration Act read with item No. 4 of the second Schedule thereto, the Court had power to issue an interim injunction during the pendency of the application under Section 20 of the Indian Arbitration Act. After considering the matter on the merits, he granted an interim injunction restraining the appellants from getting the contract executed through another contractor until the dispute was decided by the Arbitrator. On the same day, he also allowed the application under Section 22.
3. At the outset a preliminary objection has been taken by learned counsel for the respondent. He contends that the appeal is not maintainable. After hearing learned counsel for the parties, it seems to us that the objection must be uphold. The order under appeal was made under the purported exercise of the powers under Section 41 (b) of the Indian Arbitration Act. Section 41 (b) confers upon the Court for the purpose of, and in relation to, the arbitration proceedings the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of. and in relation to. any proceedings before the Court. Among the matters set out in the Second Schedule are 'interim injunctions or the appointment of a receiver'. Therefore for the purpose of, and in relation to, arbitration proceedings the Court has power to grant an interim injunction even as it would have for the purpose of. and in relation to any suit or other proceeding before it. When the Court so grants an injunction by virtue of Section 41 (b), the order granting the injunction is an order under the Indian Arbitration Act. The power to grant the interim injunction is specifically conferred by Section 41 (b), and our brother Chet Ram Thakur traced his power to grant the interim injunction to Section 41 (b). Now. an appeal under Section 39 (1) of the Indian. Arbitration Act lies against only those orders which are specifically enumerated therein and against no other, and a perusal of Section 39 (1) will show that an order under Section 41 (b) is not an appealable order. It is pointed out by the appellant that the present appeal has been preferred under Clause 10 of the Letters Patent and not under Section 39 (1). As to that, it has been laid down in Union of India v. Mohindra Supply Co.. AIR 1962 SC 256 that the Letters Patent cannot be resorted to in order to sustain an appeal against on order under the Indian Arbitration Act. That is also the view taken by the Calcutta High Court in Rebati Ranjan Chakravarti v Suranjan Chakra-varti, AIR 19G3 Cal 642. For the same reason, in our opinion, no appeal will lie under Order 43. Rule 1 of the Code of Civil Procedure. As regards Shri Krishen v. Radha Kishan AIR 1952 All 652 and Therpal v. Arjan Singh, AIR 1947 Madh Bha 22 the orders under appeal in those cases were not orders made under the Indian Arbitration Act.
4. Learned counsel for the appellants contends that the order under appeal is not an order under Section 41 (b) of the Indian Arbitration Act because, he says Section 41 (b) contemplates the grant of an interim injunction during the pendency of arbitration proceedings, and it cannot be said that an application under Section 20 is an arbitration proceeding. It is now settled law that the question whether an appeal lies depends upon the jurisdiction which the Court below purports to have exercised and not the jurisdiction which it can or should have exercised. The order under appeal must be taken as it stands. It is an. order which ex facie has been made by virtue of Section 41 (b).
5. It has also been urged by learned counsel for the respondent that even if Clause 10 of the Letters Patent can be brought into play, the present appeal is not maintainable because the order granting an interim injunction is not a 'judgment'. In the view that we are taking that Section 39 (1) of the Indian Arbitration Act excludes the operation of Clause 10 of the Letters Patent, it is not necessary to consider this submission.
6. The appeal fails and is dismissed with costs.
D.B. Lal, J.
7. I agree. Appeal dismissed.