SUBRAMANNAYA BHATTA Vs. DEVADAS NAYAK

JUDGEMENT

(1.) IN this appeal, the learned counsel for the appellant, raised a question of law, not covered by any decision of our High Court, as to the powers of an appellate Court to refer the disputes between the parties to arbitration. During the pendency of the appeal, A. S. No. 29 of 1950, the District Judge of South Kanara, on the joint application of both the parties to the appeal, referred the matter to arbitration; and on receipt of the a ward which went against respondent 3, he filed a petition, R. I. A. No. 228 of 1952, to set aside the award and to hear the appeal on the merits. Before the learned District Judge, two grounds were taken by the petitioner": (1) that the notices required by S. 14 were not given, and (2) that the appellate Court cannot refer a dispute to arbitration and that the reference itself was therefore bad. The learned District Judge negatived both the contentions and held that the reference to arbitration was proper and within the powers of the appellate 'Court, and accordingly dismissed the petition. As against that order, the present appeal has been preferred. IN this appeal, the only contention that was advanced for the appellant was the same as ground No. 2 raised before the learned District Judge, namely, that an appellate Court has no powers to refer the matter to arbitration under S. 21, Arbitration Act.

(2.) THE provisions relating to arbitration were originally embodied in Schedule 2, Civil P. C. But those provisions were repealed and re-enacted into a separate Code by Arbitration Act 10 of 1940. We have therefore to look to the provisions of that enactment to answer the contention advanced for the appellant. Prior to the enactment of Act; 10 of 1940, there was no difficulty, in holding that an appellate Court had powers to refer the disputes between the parties to the appeal to arbitration under Schedule 2, C. P. C., by reason of the provisions of S. 107 of the Code, under which an appellate Court is given the same powers and authorised to perform the same duties as are conferred and imposed by the Code oh Courts of original jurisdiction in respect of suits instituted therein. Reference may be made to an old decision of our High Court reported in -' Sankaralingam Pillai', 3 Mad 78 (A). It is contended for the appellant that after the repeal of Schedule 2 and the re-enactment of those provisions into a separate Code, it is not open to resort to Section 107 of the Code, and emphasis is placed on the words "by this Code", occurring in Clause (2) of that section. But that contention has been answered by a Full Bench decision of the Allahabad High Court reported in -- 'Moradhwaj v. Bhudar Das', (S). THE learned Judges held that by reason of S. 8, General Clauses Act, the provisions of S. 107(2) of the Code would still empower an appellate Court to refer the disputes to arbitration. At p. 358, their Lordships have observed:

(3.) FOR these reasons, I am of the view that the definition of "Court" in Section 2(c), Arbitration Act includes an appellate Court, and so, under Section 21 an appellate Court can refer disputes between litigants for the decision of arbitrators. The word "suit" in that section can present no difficulty, because an appeal has always been held to be a continuation of the original suit. In the Patna case referred to above, it was observed: