STATE OF KERALA Vs. GOPALAKRISHNAN

JUDGEMENT

(1.) PLAINTIFF filed I A. 246/86 in OS. (Arbitration) 235/84 of the Sub Court, Trivandrum to review the order appointing chief Engineer (Arbitration) as arbitrator. That petition was allowed. This is challenged by the revision petitioners.

(2.) MAINTAINABILITY of the revision petition is itself challenged by the respondent. It is contended that the order allowing the review petition is an order appealable under Order 43 Rule 1 (w) of the CPC. and so the revision petition is ill-conceived. Order 43 Rule 1 (w) envisages that an order under rule 4 of Order 47 granting an application for review is appealable. Order 47 Rule 7 provides that an order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. S. 41 (a) of the Arbitration Act postulates that the provisions of the CPC shall apply to all proceedings before the Court and to all appeals under the Act. From the above Section it is clear that all provisions of the CPC. are made applicable to all proceedings of the Court under the Arbitration Act. The review petition has been filed under Order 47 Rule 1 CPC. S. 39 of the Arbitration Act allows appeals against orders passed under the express provisions of the Act itself and not against any order passed upon the application of the rules of the CPC. S. 39 of the Arbitration Act while enumerating the matters which could be appealed against has not made any reference to appeals which the CPC. provides from orders passed under the provisions of the Code. Order 43 Rule 1 (w) makes it abundantly clear that when a review petition is allowed the aggrieved party can only file appeal. As the provisions of the CPC. are made applicable to all proceedings before the court the only course open to the revision petitioners is to file appeal in the proper court It is very significant to note that S. 39 of the Arbitration Act does not take away the right of appeal given by the CPC. against the order allowing the review petition filed under Order 47 Rule 1 CPC, 8. 115 (2) CPC. says that the High Court shall not under this section, vary or reverse any decree or order against which appeal lies either to the High Court or to any Court subordinate thereto. Explanation to S. 115 (2) states that "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding. Therefore, the position is undoubtedly clear that the revision petition filed in this court without resorting to appeal in the appropriate court is not maintainable.