An appeal lies against an order appointing an arbitrator under Section 20(4) of the Arbitration Act, as such an order amounts to an order refusing to file the arbitration agreement that was being enforced by the parties.

( 1 ) THIS appeal is from an order of Datta, J.

( 2 ) THE respondent made an application for an order that Agreement No. 694/ Con/ser/62 be filed and for an order for payment of costs

( 3 ) THE respondent in the petition alleged that the said agreement 694/con/ SER/62 dated 10 July. 1962 was entered into by the plaintiff and the defendant. Relevant portions of the agreement are set out at pages 4 and 5 of the paper book. The respondent alleged in the petition that disputes and differences arose and the respondent claimed under the said agreement large sums of money which the appellant disputed or refused to pay. The further al-legations of the respondent were that by a letter dated 3-1 October, 1964 the respondent called upon the General Manager to invoke Clause 63 of the general condition and to appoint arbitrators. Clause 63 is for the sake of brevity described as an arbitration agreement. The respondent alleged that the authorities did not appoint any arbitrator. The respondent alleged that the disputes were within the arbitration clause. On these allegations the respondent prayed for an order for filing of the arbitration agreement.

( 4 ) THE appellant filed an affidavit-in-opposition. In that affidavit the appellant contended, inter alia, that the respondent was not entitled to claim any sum of money. The deponent in the affidavit further alleged that the General Manager sent a panel of four arbitrators for selection in accordance with the terms in the arbitration clause.

( 5 ) THE respondent filed an affidavit-in-reply. In that affidavit it was contended that three Chief Engineers decided not to make payments except for work below ground level or thereabout and therefore the names of the arbitrators that the respondent sent were not the names of persons who could be called independent panel of arbitrators.

( 6 ) THE respondent was given liberty to file a further affidavit and in that further affidavit it was alleged that a fresh list of four persons was sent and the allegations made in the affidavit-in-reply were denied.

( 7 ) THE learned Judge made an order that the arbitration agreement should be filed. Thereafter the learned Judge made an order that J. C. Mehta, Deputy General Manager, Eastern Railway was appointed the arbitrator. The reasoning of the learned Judge was that there was no specific prayer for making an order of reference to the arbitrator and that the Court had to make an order of reference after it had directed the agreement and it was not dependent on any prayer in the petition. The other reason which the learned Judge gave was that that the words "appointed by the parties" appearing in Sub-section (4) of Section 20 of the Arbitration Act indicate that the Court has to carry out the duty of making the reference to the arbitrator before the Court directs reference.

( 8 ) THE appeal is directed, inter alia, against the order passed whereby the arbitration agreement that was filed is not the arbitration agreement having the arbitrators appointed by the parties but a different arbitration agreement having a different arbitrator appointed by the Court

( 9 ) COUNSEL for the respondent contended that the appeal was not maintainable because under Section 39 of the Arbitration Act an appeal was competent only against an order filing or refusing to file an arbitration agreement and no appeal lay against an order appointing an arbitrator. In aid of that contention reliance was placed on the decision of the Supreme Court in Dhanrajmal Gobindram v. Shamii Kalidas and Co. , the provisions contained in Section 20 of the Arbitration Act are divided into five subsections. Sub-section (4) indicates that where no sufficient cause is shown, the Court shall order the agreement to be filed and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or, where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court. It is sai