ANUP KUMAR BISWAS Vs. BABUL KUMAR BISWAS

JUDGEMENT

(1.) In this application for interim order a preliminary objection is taken viz. ; that this application for interim order cannot be entertained unless the appeal is admitted under Order 41, Rule 11 of the Code of Civil Procedure (CPC). Admittedly, this has not been set down for hearing under Order 41, Rule 11, CPC.

(2.) The learned counsel for the appellants/petitioners, however, pointed out that the appeal is an appeal under Section 37(1)(a) of the Arbitration and Conciliation Act, 1996 (1996 Act). This provision confers statutory right of appeal. When the statute provides for an appeal, there is a right of appeal. Such right cannot be denied through a procedure for admission. According to him, the provision of Section 41 of the Arbitration Act, 1940 (1940 Act) which provided for application of CPC has since been repealed by implication on the incorporation of Section 19 of the 1996 Act. This provision specifically excludes application of CPC.

(3.) Learned counsel for the respondents had opposed the said contention and pointed out that Section 37 of the said Act itself makes the position clear. It provides for appeal against orders similar to Section 104, CPC. Until and unless the admission hearing is excluded specifically the normal procedure of the forum to which appeal is provided is to follow.