DAULAT RAM PHOOLCHAND Vs. SHRIRAM

JUDGEMENT

(1.) THIS revision application has been preferred against the order dated the 1st of january, 1962 passed by the Addl. District Judge, Gwalior, in Civil Misc. Case No. 19 of 1961 whereby the present petitioner's application under Section 41 of the indian Arbitration Act read with Section 151 of the Code of Civil Procedure was dismissed.

(2.) THE parties to the action appointed arbitrators on 23-9-1960 for the partition of their joint family property; but so far as the arbitrators have failed to effect the partition. The petitioner formerly submitted applications under Sections 20 and 41 of the Indian Arbitration Act (hereinafter referred to as the Act) which were both dismissed by the Additional District Judge, Gwalior on 28-4-1961. On an appeal being preferred against that order it was held by a Division Bench of this Court that since no difference had arisen between the parties with regard to any of the matters to which the arbitration agreement applied, Section 20 of the Act could not be invoked by the present petitioner. Thereafter the present petitioner filed a fresh application under Section 41 of the Arbitration Act praying for the appointment of a receiver. The Court dismissed this application on the short ground that an application under Section 20 of the Act must be filed in order to enable the Court to take action under Section 41 of the Act. Since the application under Section 20 of the Act had already been dismissed once and the order of its dismissal had been upheld by the High Court, the application under Section 41 of the Act could not in the opinion of the lower Court, be entertained on its own strength.

(3.) CLAUSE (b) of Section 41 of the Act runs as under : "subject to the provisions of this Act and of rules made thereunder- (b) the Court shall have, for the purpose of, and in relation to, arbitration proceedings the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to any proceedings before the Court : provided that nothing in Clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire tor making orders with respect to any of such matters. The Second Schedule which lays down the powers of the Court under section 41 of the Act provides for the preservation, interim custody or sale of any goods which are the subject-matter of the reference. Item no. 4 of the Second Schedule provides for power to issue interim injunctions or to appoint a receiver.