State of U.P.and another vs Surendra Kumar Rastogi and another

K.C. Bhargava, J.—This appeal is directed against the order dated 1211987 passed by the Civil Judge, Bahraich. A preliminary objection has been raised by the learned counsel for the respondents that this appeal filed under Section 39(1) of the Arbitration Act is not maintainable before this Court.

Learned counsel for the appellants as well as respondents have been heard. Learned counsel for the appellants has argued that an appeal under Section 39(1) of the Arbitration Act is maintainable against the order passed by the Civil Judge. Bahraich on the application of the respondents under Section 8 of the Arbitration Act. In support of this contention he has placed reliance on the cases of Union of India v. M/S Arveecha (1979 (4) SCC 21) and M/S Har Bhagwan Har Bhajan Lal v. State of Haryana (1977(2) SCC 716). None of these cases apply to the facts of this case as the question involved here was not considered in any of these cases. The facts of these two cases are entirely different from the controversy in dispute.

Learned counsel for the respondents has placed reliance on the case of Union of India v. Mohindra Supply Co. (AIR 1962 SC 256). In para 4 the Hon''ble Supreme Court has held that an appeal under Section 39(1) of the Arbitration Act lies against certain orders enumerated in that subclause. In the next para it has been laid down as under :

"Under S. 39(1), an appeal lies from the orders specified in that subsection and from no others. The legislature has plainly expressed itself that the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain orders. The right to appeal against other orders is expressly taken away."

The next case relied upon by the learned counsel for the respondents is Ram Babu v. Lakshmi Narain (AIR 1963 Allahabad 252) wherein a Division Bench of this Court had the occasion to consider this question and held as under :

"So far as Chapter VI of the Arbitration Act is concerned, it only deals with appeals from orders and not appeals from decrees. Section 39(1) of the Arbitration Act confers a right of appeal against certain orders with the addition that not even a first appeal is to lie from orders other than those mentioned in that provision."

The third case on this point is Union of India v. Mohd. Usman (AIR 1965 Allahabad 269) wherein a Division Bench of this Court has held in para 5 that if an order has been passed under Section 8 of the Arbitration Act then no appeal against that order lies under Section 39 of the Act, and such appeal has to be dismissed.

In the latest decision in the case of State of West Bengal v. M/S Courangalal Chatterjee (1993) 3 SCC 1) the Hon''ble Supreme Court has held that an appeal under Section 39(1) of the Arbitration Act can only lie under those conditions which have been prescribed in that section. It is further held that no appeal lies in other cases.

Thus in view of the authorities cited by the learned counsel for the respondents it is clear that if an order has been passed under Section 8 of the Arbitration Act by the court below then no appeal shall lie under Section 39(1) of the Arbitration Act to this Court. The present appeal is, therefore, not maintainable in view of the above position of law.

The appeal is dismissed. The interim order is vacated.