JUDGMENT - LODHA R.M., J.:---This appeal raise an issue of some importance. The issue is whether the power exercisable under section 9(ii)(d) of the Arbitration and Conciliation Act, 1996 by the Court in a matter seeking security in respect of the amount in dispute in the arbitration is restricted by the conditions of attachment before judgment as prescribed under Order 38, Rule 5 C.P.C. In other words, the question is, is it necessary for the party seeking interim measure from the Court for security of the amount in dispute in the arbitration by the Court during the arbitral proceedings to satisfy the conditions of attachment before judgment under Order 38, Rule 5 C.P.C.

2. The aforesaid issue in its stark form has to be considered in the light of the provisions contained in the Arbitration and Conciliation Act, 1996 (for short "Act of 1996") and the powers of the Court.

3. The Act of 1996 which came into force on 22nd August, 1996 was enacted to consolidate and amend and law relating to domestic arbitration, international commercial arbitration and enforcement of foreign Arbitral Awards inter alia to define the law relating to conciliation of the matters connected therewith or incidental thereto. Section 2(e) defines the Court which means the principal Civil Court of Original Jurisdiction in a district and includes the High Court in exercise of its Ordinary Original Civil Jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit but does not include any Civil Court of a grade inferior to such principal Civil Court or any Court of Small Causes. A 'party' under section 2(h) means a party to an arbitration agreement. Section 9 empowers the Court to order interim measures before or during arbitral proceedings or any time after the making of the Arbitral Award but before it is enforced in accordance with section 36. Section 9 of the Act of 1996 reads thus -

"9. Interim measures, etc. by Court.---A party may, before or during arbitral proceedings or at any time after the making of the Arbitral Award but before it is enforced in accordance with section 36, apply to a Court-

(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or

(ii) for an interim measure of protection in respect of any of the following matters, namely:-

(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d) interim injunction or the appointment of a Receiver;

(e) such other interim measure of protection as may appear to the Court to be just and convenient,

and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it."

4. The Act of 1996 is materially different from the Arbitration Act, 1940 which has been repealed by section 85 of the Act of 1996. Section 41 of the Arbitration Act, 1940 provided for procedure and powers of the Court. Code of Civil Procedure was made applicable to all proceedings before the Court under section 41 of the Act of 1940. Section 41 of the Arbitration Act, 1940 reads thus-

"41. Procedure and Powers of Court.---Subject to the provisions of this Act and of Rules made thereunder:

(a) the provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall apply to all proceedings before the Court, and to all appeals u

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