An order passed under Section 41(b) of the Arbitration Act is not appealable unless it is made in relation to an arbitration proceeding initiated on a reference.

Anil K. Sen, J.

The respondents in a proceeding under S. 20 of the Indian Arbitration Act arc the petitioners before us in this revisional application. The revisional application is being heard on notice to and on contest by the opposite party to this application who was applicant before the court below.

2. The opposite party entered into a contract on June 6, 1981 with the State of West Bengal, petitioner no.1 before us, for relaying and raising the water main under the Durgapur Interim Water Supply Scheme. The estis mated value of the contract work was Rs.92.168.00 but the tender value was Rs.57,144.00. Before the opposite party could take up the work, dispute arose between the parties. While the petitioners accused the opposite party of having failed to take up the work without any reasonable cause, the opposite party accused the petitioners for not fulfilling their part of the contract as a result whereof he could not undertake the work. In such a situation the petitioners rescinded the contract on November 30, 1981. Since the contract incorporated an arbitration clause, the opposite party filed an application under S. 20 of the Arbitration Act before the learned Subordinate Judge, Hurdwan for filing the agreement in court for a reference to be made to the arbitrator in terms of the agreement. .

3. Having filed such an application, the opposite party filed another application under S.4l(b) of the Arbitration Act praying for an order of injunction restraining the petitioners from giving effect to the said rescission of the contract. The learned Subordinate Judge in issuing a show cause notice granted an ad interim injunction as prayed for by an order 'dated December 15, 1981. Feeling aggrieved by such an ad interim order of injunction the petitioners preferred an appeal before the learned District, Judge being Misc. appeal No.224/14 of 1981. The learned District Judge has dismissed this appeal by order dated March 8, 1982 not on merits but on the view that such an appeal is not maintainable in law. Two reasons have been assigned by the learned District Judge for holding as such. The first reason assigned by him is that since the value of the work under the contract is above Rs.92,000,00 be had not the pecuniary jurisdiction to entertain such an appeal The second reason given by him is more important. According to the learned District Judge the order impugned in the appeal having been made in exercise of power under S. 41(b) of the Act no appeal lies therefrom since such an order is not appealable under S. 39(1) of the Act. Feeling aggrieved the petitioners have now moved this court in revision.

4. Mr. Banerjee, appearing in support of this revisional application, bas first contended that the learned District Judge went wrong in thinking that no appeal lay before him against the order of the learned Subordinate Judge. Neither of the two reasons assigned by the learned District Judge is, according to Mr. Banerjee, a valid reason for refusal to entertain the appeal on its merits. Mr. Banerjee contends that when the opposite party himself valued the application under S. 20 of the Arbitration Act at Rs. 9,999/- assessing that amount to be the value of his relief, it was not open to the learned District Judge to say that the value of the proceeding was above Rs. 92,000/-. Secondly, it has been contended by Mr. Banerjee that the order of the learned Subordinate Judge is in substance one passed in exercise of his powers under Order 39 Rules 1 and 2 of the Code as invoked by S.4l(a) of the Arbitration Act and not under S.4.(b) which clause could be invoked only in case of a reference to arbitration being made and thus bringing into existence the arbitration proceeding. The order being one made ill exercise of his powers under Order 39 Rules 1 and 2 of the Code according to Mr. Banerjee an appeal lies under Order 43 of the same Code. Mr. Banerjee has next assailed the propriety and the legality of the order of injunction as pas