THAKUR PRASAD Vs. BALESHWAR AHIR

JUDGEMENT

(1.) DURING the pendency of this appeal before this Court, the parties have filed applications stating that they have agreed that the matter in difference between them should be referred to arbitration, and, in pursuance of that agreement, they have executed a deed of agreement, which has been duly registered, to refer that matter to arbitration. Accordingly, under Section 21, Arbitration Act (10 of 1940), they have prayed for an order of reference.

(2.) THE important question for consideration is whether an order of reference under Section 21, Arbitration Act can be made by an appellate Court. As there appears to be a divergence of opinion on this point between the Calcutta and the Allahabad High Courts, and there being no decision of this Court, this Question has been referred to a Division Bench.

(3.) THE Calcutta view has been expressed in --'Abani Bhusan v. Hem Chandra', AIR 1947 Cal 93 (A). THEre it was pointed out that the question was not free from difficulty and required careful consideration, and it was held that the term "Court" as denned in the Arbitration Act does not include an appellate Court, and, consequently, there is nothing in the Arbitration Act which enables an appellate Court to refer to arbitration matters in dispute between the parties.