UNION OF INDIA Vs. N K PRIVATE LIMITED

JUDGEMENT

(1.) .

(2.) AFTER the dis2pute arising from a contract between the parties was referred to arbitration by an order passed under section 20 of the Arbitration Act, 1940 (hereinafter called the Act) by this Court, a further order of temporary injunction against the Union of dia was passed by a learned Single Judge of this Court. The Union of India then made an application purporting to be under Order XXXIX rule 4 read with section 151 of the Code of Civil Procedure for cancellation or variation of the temporary injunction. On this apilication, the temporary injunction was modified to some extent by a learned Single Judge of this Court. The union of this India has come up in appeal against the said order with a view to get the temporary injunction vacated or further modified. The appeal has been filed under section 10 of the Delhi High Court Act, 1966 read with Order XLIII rule l(i) of the Code of Civil Procedure. The respondents, however, contend that the order appealed against having been passed under the Act but not having been made appealable by section 39 thereof, the appeal is not maintainable.

(3.) IN Shri Krishen v. Radha Kishen, AIR 1952 Allahabad 652, relying upon an earlier Full Bench decision of that Court, a view was expressed that the operation of section 39 of the Act was confined only to orders which were made under some express provision of the Act and did not extend to those orders which are made under the provisions of the Code of Civil Procedure which in a sense are incorporated in the Arbitration Act by section 41 of the said Act. The distinction made between the provisions of the Act and the provision of the Code of Civil Procedure by the Allahabad High Court fails to consider the real source of authority conferred on the Court for the application of the provisions of the Code of Civil Procedure. They are not applicable by their own force. They are made applicable only by section 41 of the Act. The test of incorporation was rejected by the learned Judges without sufficient reason. IN our view, that test is decisive. For. even if the Code of Civil Procedure, 1908, were to be repealed the Courts would still be authorised to apply the provisions of that Code and this could be done only because of the authority conferred on the Court by section 41 of the Act. If, on the other hand, section 41 of the Act were to be repealed, the provisions relating to appeals under Order XLIII would not be applicable by virtue of section 141 Civil Procedure Code which is restricted only to procedure. We are, therefore, still of the view that the order under appeal is passed under the Arbitration Act and not under the Code of Civil Procedure. We find ourselves in agreement in this respect with the view of a Division Bench of the A Calcutta High Court in Rebati Ranjan Chakravarti v. Suranjan Chakravarti AIR 1963 Calcutta 6420.