An appeal does not lie under Clause 15 of the Letters Patent from an order which is not covered by Clause (1) of Section 37 of the Arbitration and Conciliation Act, 1996.

R. Dayal, J.

We have heard Mr. S.N. Mukherjee for appellant and Mr. Sunil Mitra for respondent No. 1 as regards the maintainability of the appeal.

2. This appeal is directed against the order dated 3rd December 1996 of a learned Single Judge of this Court passed in Civil Suit No. 93(A) of 1996 whereby an application made by the appellant, who is defendant No. 1 in the Civil Suit, under s. 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) was rejected on the ground that reliefs have been claimed in the Civil Suit against respondent No. 2 as well who is not a party to the arbitration agreement even when reliefs can only be granted in the presence of the appellant. Learned Counsel for respondent No. 1 has submitted that the appeal is not maintainable for the reason that s. 37(1) of the Act does not specify an order passed under s. 8 as an order from which an appeal is permissible. According to the learned Counsel, since subs. (1) of said s. 37(1) provides for appeals only against those orders which are specified thereunder and further stipulates that an appeal does not lie from any other order an appeal does not lie from an order of a class not specified thereunder either under s. 37 of the Act or under cl. 15 of the Letters Patent, particularly, in view of cl. 44 of the Letters Patent which makes all the provisions of the Letters Patent subject to the law of the appropriate legislature. On the other hand, Learned Counsel for the appellant has submitted that an order rejecting an application under s. 8 amounts to judgment within the meaning of cl. 15 of the Letters Patent and as such appeal against such an order under the Letters Patent. He has sought to derive support from certain observations in Shah Babulal Khimji vs. Jayaben D. Kania and another AIR 1981 SC 1786. Section 37 of the Act reads as follows :-

"37. Appeal-able orders.-(1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order, namely :-

(a) granting or refusing to grant any measure under section 9;

(b) setting aside or refusing to set aside an arbitral award under section 34.

(2) Appeal shall also lie to a Court from an order of the arbitral tribunal-

(a) accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or

(b) granting or refusing to grant an interim measure under section 17.

(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or taken away any right to appeal to the Supreme Court."

Clause 44 of the Letters Patent says :-

"Powers of Indian Legislature preserved. And we do further ordain and declare, that all the provisions of these Our Letters Patent are subject to the legislature powers of the Governor-General in Legislative Council and also of the Governor-General in Council under section 71 of the Government of India Act, 1915, and also of the Governor-General in cases of Emergency under section 72 of that Act, and may be in all respects amended and altered thereby."

3. Section 37(1) of the Act specifies those orders of the Court from which an appeal lies to the Court authorised by law to hear appeals from original decrees of the Court passing the order. It further stipulates that an appeal shall not lie from any order not specified therein. Clause 15 of the Letters Patent read with cl. 44 being subject to the law of an appropriate legislature, interdiction of an appeal from an order not specified under s. 37(1) would exclude the operation of cl. 15 of the Letters Patent with regard to such appeal. In State of West Bengal vs. Gourangalal Chatterjee 1993(3) SCC 1 similar controversy came to be considered by the Apex Court. There the question was whether an appeal is maintainable either under s. 39(2) of the Arbitration Act 1940 or under the Letters Patent from an order not covered in either of the six clauses mentioned