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TMI Blog1961 (9) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... C. WANCHOO, K.N. GUPTA, K.C. DAS DAYAL, RAGHUBAR JUDGES JUDGMENT : Lal and T. M. Sen, For the appellant. S. T. Desai, Chatter Behari and A. G. Ratnaparkhi, For the respondent. SHAH, J.- A dispute, arising under a contract relating to the supply of solidified fuel between Messrs. Mohindra Supply Company-hereinafter referred to as the respondents-and the Governor-General of India in Council was referred to arbitration of two arbitrators. On March 19, 1946, the arbitrators made and published an award directing the Governor-General to pay to the respondents Rs. 47,250/- with interest at 3% from July 17,1944, till payment. This award was filed in the court of the Subordinate Judge, First Class, Delhi. The Governor-General applied for an order setting aside the award on certain grounds which for the purposes of this appeal are not material. The Subordinate Judge refused to set aside the award on the grounds set up and rejected the application. Against the order refusing to set aside the award, the Governor-General preferred to the Lahore High Court an appeal which after the setting up of the Dominions of India and Pakistan was transferred to the Circuit Bench of the Eas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing the order: An order- (i) superseding an arbitration; (ii) on an award stated in the form of a special ease; (iii) modifying or correcting a award; (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement; (vi) setting aside or refusing to set aside an award: Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court. (2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court." The two sub-sections of s. 39 are manifestly part of a single legislative pattern. By sub-s. (1), the right to appeal is conferred against the specified orders and against no other orders; and from an appellate order passed under sub-s. (1) no second appeal (except an appeal to this Court) lies. On the question whether the interdict, in sub-s. (2) operates against an appeal under the Letters Patent, there has been a divergence of opinion amongst the High Courts in India. The Bombay High Court in Madhavdas v. Vithaldas I.L.R. (1952) Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm of a special case. These orders are not decrees within the meaning of the Code of Civil Procedure and have not the effect of decrees under the Arbitration Act. Section 100 of the Code of Civil Procedure deals with appeals from appel- late decrees-and not with appeals from appellate (1) (1961) 74 L.W. 408 F.B. orders. If by enacting s. 39(2) appeals from appellate decrees were intended to be prohibited, the provision was plainly otiose; and unless the, context or the circumstances compel the Court will not be justified in ascribing to the legislature an intention to enact a sterile clause. In that premise the conclusion is inevitable that the expression "second appeal' used in s. 39(2) of the Arbitration Act means a further appeal from an order passed in appeal under s. 39(1) and not an appeal under s. 100 of the Civil Procedure Code. This view was expressed by Savdekar, J., in Madhavdass v. Vithaldas I.L.R. [1952] Bom. 570., and by Rajamannar, C. J., in Mulchand Kewal Chand Daga v. Kissan Das Gridhardass (1961) 74 L.W. 408 F.B. 504 and we agree with the learned Judges that the adjective "imports a further appeal, that is, numerically second appeal". The problem to which attentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (2). But a little analysis of this argument is likely to exhibit the somewhat startling consequences. If the appeal contemplated by s. 39 (1) is only an appeal to a superior court, orders passed by a subordinate court decisions whereof are made appealable to the same court will not be appealable at all under the Arbitration Act. For instance, under the Bombay Civil Courts Act, certain decisions of Assistant Judges are made appealable to the District Courts. An Assistant Judge is a Judge of the District Court and under the Bombay Civil Courts Act, appeals against his orders and decrees in certain cases lie to the District Court. If the argument that an appeal under el. (1) of s.39 means an appeal to a superior court, be accepted, an appeal from an order under s. 39 (1) by an Assistant Judge will not lie at all. There are similar provisions in the Civil Courts Acts in the other States as well. The qualifying expression "to the court authorised by law to hear appeals from original decrees of the Court passing the order" in s. 39 (1) does not import the concept that the appellate court must be distinct and separate from. The court passing the order or the decree. The legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal which was previously exercisable by litigants against decisions of single Judges of the High Courts in appeals from orders passed in arbitration proceedings was intended to be taken away by s. 39 (2) of the Indian Arbitration Act, the Court must proceed to interpret the words of the statute without any predisposition towards the state of the law before the Arbitration Act was enacted. The Arbitration Act of 1940 is a consolidating and amending statute and is for all purposes a code relating to arbitration. In dealing with the interpretation of the Indian Succession Act, 1865, the Privy Council in Narendra Nath Sircar v. Kamlabasini Dasi(1896) L. R. 23, I. A. 18., observed that a code must be construed according to the natural meaning of the language used and not on the presumption that it was intended to leave the existing law unaltered. The Judicial Committee approved of the observations of Lord Herschell in Bank of England v. Vagliano Brothers [1891] A.C. 107, 144-145.,to the following effect :- "I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning uninfluenced by any considerations derived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its original or appellate jurisdiction." The Code of 1877 was replaced by the Code of 1882 but the provisions relating to appeals from orders were re-enacted in identical terms. Before the decision in Hurrish Chunder's case, the view was held, especially by the Bombay and the Madras High Courts, that under cl.(15) of the Letters Patent of the High Courts of Bombay, Madras and Calcutta an appeal from an order passed by a single Judge of a High Court lay only under s. 588 of the Code and not otherwise. In Sonba' v. Ahmed bha' Habibha' (1872) 9 Bom. R. C. Reports 398. a Full Bench of the Bombay High Court in construing the provisions of the Letters Patent of the High Court in the light of the provisions of s. 363 of the Civil Procedure Code held that under cl. 15 of the Letters Patent and under the rules of the High Court, an appeal to the High Court from an interlocutory order mad(, by one of the Judges lies only in those cases in which an appeal is allowed under the Code of Civil Procedure and its amending Acts. A similar view was expressed by the Madras High Court in Achaya v. Ratrandu, I.L.R. 9 Mad. 447. But the Privy Council in Hurrish Chunder Chowdry v. Kali Sundari Debia (18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This judgment (in Hurrish Chunder Chowdry's case) gave rise to a serious conflict of opinion in the High Courts in India. The High Courts of Calcutta, Bombay and Madras held, following the dictum of the Privy Council, that an order not appealable under s. 588 of the Civil Procedure Code may still be appealable provided it amounted to a "judgment" within the meaning of cl. 15 of the Letters Patent of the respective High Courts.-Chappan v. Moidin Kutti I.L.R. (1899) 22 Mad. 68., chabhapathi Chetti v. Narayanaswami Chetti I.L.R. (1902) 25 Mad. 555,, Toolsee Money Dassee v. Sudevi Dassee LL.R.(1899)26Cal.363., and Secretary of State v. Jehangir [1902] 4 Bom. 342. But the Allahabad High Court in Banno Bibi v. Mehdi Husain I.L.R. (1889) 11 All. 375., expressed a contrary opinion. It was observed by Sir John Edge, C. J., that if the order was not appealable under s. 588 and s. 591 of the Code of Civil Procedure it could not be appealed against under the Letters Patent of the High Court. This' view was affirmed by a Full Bench of the same court in Muhammad Naim- Ul-Lah Khan v. Ihsan-Ul-Lah Khan I.L.R. (1892) 14 All. 226. The legislature in this state of affairs intervened, and in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing schedule 2 and s. 104 (1) cls. (a) to (f) of the Code of Civil Procedure 1908 and the Arbitration Act of 1899. By s. 39 of the Act, a right of appeal was conferred upon litigants in arbitration proceedings only from certain orders and from no others and the right to file appeals from appellate orders was expressly taken away by sub-s. 2 and the clause in s. 104 of the Code of 1908 which preserved the special jurisdiction under any other law was incorporated in s. 39. The section was enacted in a form which was absolute and not subject to any exceptions. It is true that under the Code of 1908, an appeal did lie under the Letters Patent from an order passed by a single Judge of a Chartered High Court in arbitration proceedings even if the order was passed in exercise of appellate jurisdiction, but that was so, because, the power of the Court to hear appeals under a special law for the time being in operation was expressly preserved. There is in the Arbitration Act no provision similar to s. 4 of the Code of Civil Procedure which preserves powers reserved to courts under special statutes. There is also nothing in the expression "authorised by law to hear appeals from original ..... X X X X Extracts X X X X X X X X Extracts X X X X
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