MUNICIPALITY OF QUILON Vs. VISWAMBHARAN

JUDGEMENT

(1.) REVISION petitioners are the defendants in OS. (Arbitration) 160/85 of the Add!. Sub Court, Quilon. The respondent (plaintiff)filed I. A. 724/86 for deputing a commissioner to ascertain the extent of the work done, to make measurements of the work done and to prepare an inventory of the materials belonging to him and kept at the work site. The learned Sub Judge allowed the petition. Aggrieved by the same, the above CRP. has been filed by the defendants.

(2.) THE question to be considered is as to whether a court exercising powers under S. 20 of the Arbitration Act, 1940 has power to allow a commission application before arbitration proceedings have started. Revision petitioners contend that S. 41 (a) of the Arbitration Act relates only to procedures to be followed by the court and that the applications for appointment of receiver and for the grant of injunction and commission are dealt with under S. 41 (b) of the act which can be exercised only when the matter is pending before the arbitrator and not before the arbitration proceedings have started. Admittedly, arbitrator has not been appointed in this case. Commission application has been filed by the respondent at a stage when the court has not decided whether arbitrator should be appointed or not.

(3.) S. 41 (a) provides that the provisions of the CPC. shall apply to all proceedings before the Court, and to all appeals under the arbitration Act. Thus it can be seen that S. 41 (a) relates only to procedures to be followed by the court The contention of the petitioners is that the court can appoint a commissioner only in arbitration proceedings ie. , in the proceedings at a stage after the arbitrator has been appointed and not before that.