CHANDRA NARAIN CHAUDHARY Vs. GODAVARI CHOUDHARAIN

JUDGEMENT

(1.) THE plaintiff opposite party No. 1 filed partition Suit 126 of 1961 against the defendants, two of whom are the petitioners and the others are opposite parties 2 to 14. On the 4th of January, 1971 parties filed a joint petition praying that the disputes between the parties be referred to the arbitration of a person named in the petition. An order of reference was passed on 5-1-71 in accordance with Section 23 of the Arbitration Act, 1940 hereinafter called the Act. In this order the Court below fixed the 5th of February, 1971 as the date for submission of the award. THE arbitrator filed a petition on 5-2-71 stating that the work had started but the completion of the arbitration proceeding will take some time. He prayed for time and a week's time was allowed. THE order made on this day was-

(2.) LEARNED Counsel for the petitioners, in the first instance, prayed that this civil revision should be converted into a miscellaneous first appeal and since the valuation is above Rs. 20,000/-, it should be placed for hearing before a Division Bench. He submitted- that the order recalling the reference is an order superseding an arbitration within the meaning of Clause (i) of Sub-section (1) of Section 39 of the Act and as such is appealable. In support of this submission, he placed reliance upon Mt. Chimmon v. Brij Mohan Das, AIR 1943 Oudh 117. In ray opinion, the argument is not sustainable on scrutiny. The Oudh case was under the old law. In such a situation, it was held that the order was appealable because of the special language of Section 104 (1) (a) of the Code of Civil Procedure. Clause (a) of Sub-section (1) of Section 104, C. P. C. read-