The provision of Section 50 of the Arbitration and Conciliation Act, 1996, does not exclude the applicability of Clause 15 of the Letters Patent as far as the right of appeal is concerned against an order allowing execution of a foreign award.

K. J. SENGUPTA, J. :- The above appeal has been preferred against a judgment and order dated 17th September, 2003 passed by a learned single Judge in Execution Case No. 28 of 2003 whereby and whereunder the learned Judge has granted reliefs in terms of prayers in column 10 of the Tabular Statement enforcing a foreign award under the provisions of Section 49 of the Arbitration and Conciliation Act, 1996 (hereinafter referred in short as the said Act). This appeal was admitted by a judgment and order dated 19th September, 2003 by the Division Bench of this Court presided over by the Hon'ble Mr. Justice D. K. Seth and the Hon'ble Mr. Justice R. N. Sinha (as their Lordships then were) subject to the question of maintainability and preliminary objection. By this order no formal paper book was asked to be filed dispensing with other formalities and treating the application as informal paper book, however, liberty was granted to include additional papers in the informal supplementary paper book. The judgment and order together with other documents have been included in the informal supplementary paper book subsequently.

2. As usual, learned counsel, Mr. S. N. Mukherjee, Senior Advocate, appearing for the appellant, has taken up the preliminary point of maintainability. He urges that the order impugned is not an appealable one in view of the specific provision made in Section 50 of the said Act which is set out hereunder :

"50. Appealable orders.- (1) An appeal shall lie from the order refusing to -

(a) refer the parties to arbitration under Section 45;

b) enforce a foreign award under Section 48, to the Court authorized by law to hear appeals from such order.

(2) 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 the Supreme Court."

3. In this case admittedly foreign award has been enforced by way of execution under the provision of Section 48 read with Section 49 of the said Act. From the plain reading of the aforesaid appellate provision (Section 50) it is clear that the nature of the order is such that the same is not appealable. He says that the situation would have been otherwise if the case was a reverse one meaning thereby that the application for execution had been refused.

4. According to him, Clause (15) of the Letters Patent is a law authorizing Court to hear internal appeals in the original side, but the right of appeal being a substantive part must emanate from the statute itself. He further contends, drawing our attentionto the statement and object of various parts of the said Act, that it is a self-contained and exhaustive Code by itself and a special statute, when this Act does not provide for right of appeal against an order allowing execution, the appeal cannot be entertained even by invoking Clause 15 of the Letters Patent. In support of his contention he has relied on the following decisions of the Supreme Court and this Court viz. 1956 SCR 577 : AIR 1956 SC 604, AIR 1962 SC 256, 1998 (2) CWN 287, 1995 (1) CLJ 458, 1965 (2) All ER 68 and AIR 1988 SC 915. He also relied on an unreported decision of the Division Bench of this Court dated 27th January, 1998 in the case of Keventer Agro Ltd. v. Seagram Company Ltd. (A.P.O. No. 499 of 1997, C.S. No. 592 of 1997).

5. Mr. Sudipta Sarkar, learned Senior Advocate, appearing with Mr. D. Banerjee, learned Senior Advocate for the appellant, while opposing the aforesaid preliminary point of maintainability, contends that no doubt the aforesaid Act is a comprehensive and special statute but it provides various parts and chapters to deal with the various problems relating to amongst other arbitration proceedings whether national or foreign. According to him, Part I, Chapter I is a separate part and the same deals with the domestic arbitration right from the appointment of Arbitrator and/or Adjudicator, power of Court to grant interim relief before and during arbitration proce