TILAK RAJ KUMRA Vs. RAM PYARI

JUDGEMENT

(1.) A preliminary objection about the maintainability of this appeal has been raised by learned counsel for the respondents. In a suit filed by the respondents for accounting etc. before the lower court, an application under section 34 of Arbitration Act (hereinafter referred to as the Act) was moved by the respondent for referring the dispute to arbitration and staying the proceedings of the suit. An application was moved by the respondents for appointment: of a receiver. The trial court allowed both the applications Aggrieved by the order relating to appointment of receiver, this appeal has been filed under Order 43 (1) (d) of the Code of Civil Procedure,

(2.) LEARNED counsel for the respondents drew our attention to section 41 of the Act which reads as under :

(3.) LEARNED counsel for the appellant urged that the impugned order was passed in a proceeding before the court in a regular suit. The dispute has yet not been referred to arbitration. The lower court has only exercised the powers under section 34 of the Act and directed that the suit be stayed. The trial court has directed the parties to name their arbitrators. The impugned order was passed in a regular suit, and not during the pendency of any arbitration proceedings and in exercise of the powers under section 41 read with clause 4 second schedule of the Act. Hence as the court has exercised its power u/o. 40 for appointment of receiver the general provision of order 43 of the Code of Civil Procedure shall apply.