AHMED ABDULLA MOOSA Vs. CASSUM AHMED BARWADIA

JUDGEMENT

(1.) This summons is taken out by the plaintiff asking for leave of the Court to revoke a consent decretal order of reference to arbitration made in this suit on, November 1, 1932. A preliminary objection to the summons is taken on behalf of the defendants that no such application lies. It is contended on behalf of. the defendants that the allegation of the plaintiff only amounts to an allegation of partiality on the part of one of the arbitrators, and nowhere in the second schedule to the Civil P. C. it is provided that an application for revocation of the submission could be made on such a ground. It is urged that the only contingency of supersession of the arbitration before an award is made is contemplated and provided for in para. 5 of the second schedule to the Code. In this connection reliance is placed on para, 3 (2) which provides as follows: Where a matter is referred to arbitration, the Court shall not, save in the manner and to the extent provided in this Schedule, deal with such matter in the same suit.

(2.) Relying on this provision it is contended that, except as provided in para. 5, the Court has no power to order a revocation of arbitration once it is made an order of the Court under the schedule. In this connection strong reliance is placed on the decision in Halimbhai Karimbhai V/s. Shanher Sai (1885) I.L.R 10 Bom. 381 and also on Thoongan V/s. Chlnna Alagu Kudimban [1927] A.I.R. Mad. 910.

(3.) It is contended on behalf of the plaintiff that the jurisdiction of the Court is not confined to the provisions contained in the second schedule and the meaning sought to be attached to para. 3(2) is not correct. It is urged that the provisions of the Code are not considered by our High Court exhaustive as to the law of arbitration, and the decision in Halimbhai V/s. Shanker Sai has no application as the present application is not for the appointment of a new arbitrator but for a revocation of the submission.