Bavdekar, J. :- This is an appeal from a decision of Shah, J., on appeal from an order refusing to set aside an award. It is necessary to state the facts, because a preliminary point has been taken before us that Shah, J., having dismissed the appeal, no appeal lies now under the Letters Patent to a Division Bench of this Court. 2. Now, an appeal lies to a Division Bench of this Court from a judgment of a single Judge under the Letters Patent; but it is contended on behalf of the respondents that this right of appeal given by the Letters Patent is taken away by the provisions of S. 39, Arbitration Act. That section provides :

"An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order :

An Order :

(i) superseding an arbitration;

(ii) on an award stated in the form of a special case;

(iii) modifying or correcting an award;

(iv) filing or refusing to file an arbitration agreement;

(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;

(vi) setting aside or refusing to set aside an award;

Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court.

Then sub-s. (2) provides :

"No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to His Majesty in Council."

3. Mr. Madbhavi, who appears on behalf of the respondents, contends that any right which there may have been in a person aggrieved by a decision of a single Judge in regard to refusing to set aside an award has been taken away by the categorical provisions of S. 39 (2), which says that no second appeal shall lie from an order passed in appeal under this section. The contention is that the word "second", which apparently was not in the section of the Civil Procedure Code which formerly dealt with the matter of an appeal from these and similar orders, must be interpreted in a numerical sense. The appeal which is provided by sub-s. (1) of S. 39 is a first appeal, and any appeal from a decision on an appeal under that sub-section to any Court or Bench would be a second appeal. On the other hand, it is contended on behalf of the appellants that sub-s. (2) of S. 39 does not take away the right of appeal, which has been given under the Letters Patent.

4. Now, this matter has not come before this Court, so far as we are aware, before this. The question under S. 39 (1), however, did come up before this Court in Original Side Appeal in Ranchhoddas Purshottam and Co. v. Ratanji Virpal and Co., OCJ Appeal No. 22 of 1942, D/- 8-10-1942, and the view which was then taken was that, where an order under the Arbitration Act did not come within the purview of Cls. (i) to (vi) of S. 39 (1), it was not appealable. No reference seems to have been made to the Letters Patent; but inasmuch as prior to the Arbitration Act, which was an Act of 1940, an appeal under the Letters Patent lay to this Court, the learned Judges who disposed of the appeal must have had in their mind the appeal which was provided from a decision of a single Judge to a Division Bench of this Court under the Letters Patent. The question under/sub-s. (2) of S. 39 has, also, been raised in the other High Courts, and there have been two views in regard to the question as to whether that sub-section takes away the right of appeal given by the Letters Patent. Whereas the Madras High Court in Radhakrishnamurthy v. Ethirajulu Chetty and Co., ILR (1945) Mad 564, has taken the view that no appeal lies, the Lahore and the East Punjab High Courts have in Hanuman Chamber of Commerce v. Jassa Ram Hira Nanda, AIR (35) 1948 Lah. 64 and Banwari Lal v. Hindu College, Delhi, AIR (36) 1949 EP 165, taken the view that the right of appeal under the Letters Patent is not affected by the section.

5. Now, we are not concerned in this case with S. 39 (1),