MOOLCHAND KEVALCHAND DAGA Vs. KISSINDOSS GIRDHARDOSS

JUDGEMENT

(1.) THIS appeal originally came before a Division Bench of this court. A preliminary objection was taken on behalf of the respondent that the appeal was incompetent. The ruling of this court in Radhakrishnamurthy v. Ethirajulu Chetti and Co. , ILR 1945 Mad 564 : (AIR 1945 Mad 184), directly supported the preliminary objection. But, after some argument, it was considered that decision required reconsideration. Hence, this reference to a Full Bench.

(2.) THE appeal purports to be filed under Cl. 15 of the Letters Patent against the judgment of Ramaswami, J. In C. M. A. No. 531 of 1954. That appeal was against an order of the City Civil Court, dismissing an application filed by the respondent under S. 34 of the Arbitration Act for stay of a suit (O. S. No. 538 of 1954) on the file of the City Civil Court. Section 39 (1) inter alia provider for an appeal form an order staying or refusing to stay legal proceedings where there is an arbitration agreement (cl. (V) ). The question is whether an appeal under the Letters Patent is maintainable against the order of Ramaswami, J. It was not contended before us on behalf of the respondent that the order of Ramaswami, J. Was not a judgment within the meaning of Cl. 15 of the Letters Patent. Prima facie, thererfore, this appeal would be competent. But the respondent's contention is that S. 39 (2) of the Arbitration act prohibits this appeal under the Letters Patent. That provision runs as follows :

(3.) HAVING regard to this pronounced conflict of judicial opinion, we would discuss the question as if it were res integra. The order under appeal is a judgment within the meaning of Cl. 15 of the Letters Patent, and, therefore, prima facie, this appeal is competent under that clause. The contention that the appeal is incompetent is ultimately founded on Cl. 44 of the Letters Patent, read of course, with sub-sec. (2) of Sec. 39. Clause 44 is in general terms and is of an omnibus nature. It does not specifically refer to any right of appeal conferred by any of the clauses of the Letters Patent. It declares that the provisions of the Letters Patent are subject to the legislative powers of the Governor General in Legislative Council and the Governor General in Council under Sec. 71 of the Government of India Act, 1915 and of the Governor General in cases of emergency under Sec. 72 of that act. What can be done in the exercise of such legislative power is also mentioned in Cl. 44 itself namely, that all the provisions of the Letters Patent may in all respects be amended and altered. Clause 15 is one of the provisions of the Letters Patent and it must be conceded that this clause may in all respects be amended and altered in exercise of the legislative powers of the Governor General in Council. It is not pretended that Cl. 15 has been expressly amended and altered so as to take away the right of appeal conferred by it in certain cases arising under the Indian arbitration Act. All that is contended is that, by necessary intendment, the clause should be deemed to have been amended and altered by Sec. 39 (2) of the arbitration Act, which is no doubt an Act passed by the Governor General in legislative Council. Before we can hold that such an important provision as clause 15 of the Letters patent has been amended and altered by necessary implication, we should be satisfied beyond doubt that the implication is so compelling that to hold other wise would be practically rendering a provision of an Act of the Central legislature useless and inoperative. The question which falls for our decision, therefore, is whether Sec. 39 (2) of the Arbitration Act compels us to hold that clause 15 of the letters Patent must have been intended to be amended and altered. It is clear that Sec. 39 of the Arbitration Act is a section generally dealing with appeals form orders passed under the Arbitration Act. "court" is defined in Sec. 2 of the Act thus: