BEJOY K SWAIKA Vs. SHYAM SUNDER SWAIKA

JUDGEMENT

(1.) THIS is a petition for an order that fa) leave be given to the petitioner to file the Memorandum of Appeal on his undertaking (i) to have the order dated Apr. 22, 1977 drawn up and completed within the period of limitation and to include the same in the Paper Book to be filed herein; (ii) to have a list of dates relevant for the purpose of limitation prepared and to have the same included in the paper Book to be filed herein; and (iii) to have the order to be made herein included in the Paper Book, (b) stay of operation of the order dated Apr. 22, 1977, (c) The respondent No.l and/or his group, their servants, agents and/or assigns be restrained by an order of injunction from giving effect to or from acting under the order dated Apr. 22, 1977 in any way Or manner whatsoever and (d) ad interim order in terms of prayer (b) and (c).

(2.) WE will record that on Fridav last, i. e., Apr. 22, 1977 after the order was passed by the learned Judge. Mr. B. K. Bachawat appeared before us for Bejoy Kumar Swaika and made an oral ap-lication that his client would be seriously prejudiced by the order of the learned Judge unless stay of operation of the order was passed immediately by us on the undertaking of his client to the effect that he would make necessary application to file a Memorandum of Appeal without certified copy of the order on Monday, Apr. 25. 1977 for stay of operation of the order. On the submission of Mr. Bachawat and in the presence of the learned counsel for Shyam Sunder Swaika and his group we stayed the operation of the order of the learned Judge till today without prejudice to the rights and contentions of the parties.

(3.) MR. Bachawat submits that the Court had no jurisdiction to pass the order dated Apr. 22, 1977 as the order was passed in the Partition and Administration Suit No. 191 of 1972 Shyam Sunder Swaika v. Bejoy Kumar Swaika in which reference had been made for arbitration under Section 21 of Arbitration Act. We are unable to accept the submission of MR. Bachawat, because under Section 23 (2) of the Arbitration Act "where a matter is referred to arbitration the Court shall not. save in the manner and to the extent provided in this Act deal with such matter in suit." Under Section '25, the provisions of other chapters of the Arbitration Act shall so far as they can be made applicable apply to the arbitration under this Chapter. Chapter IV relates to arbitration in suits. Admittedly, in the instant case an interim award has been made by the Umpire MR. D. K. De, Harrister-at-Law. Bejoy Kumar Swaika has made an application for setting aside the interim award. Order has been passed by S. Mukharji. J. dismissing the said application. Against that order an appeal has been preferred. In that appeal we passed an ad interim order on Mar. 23, 1977 to the following, effect: