An appeal against orders passed under the Arbitration Act, 1940, will only lie if the same are specified within Section 39 (1) of the Act.

( 1 ) CERTAIN disputes having arisen between Shri A. S. Dhupia, respondent No. 1, and the Union of India, the appellant, the same were referred to the Arbitration under clause 25 of the Contract Agreement. Before the Arbitrator, respondento. 1 filed his claim. The appellant also filed its counter claim which, however, was rejected by respondent No. 2 on the ground that the counter claim was not maintainable as it was outside the scope of reference. The arbitrator accepted the objection and ordered that he would proceed with the claim of respondent No. 1. Thereafter the appellant filed an application under Section 33 of the Arbitration Act, 1940 (hereinafter called the Act) in this court. This application was decided by a learned single judge of this court by his order dated 16-1-1970. The Union of India aggrieved against the order filed the present appeal. When this matter came up for hearing before the Division Bench, objection was taken that the appeal was not competent as the order pased by the learned single judge was not one of those orders mentioned by sub-section (1) of Section 39 of the Act, and therefore, no appeal is maintainable. The appellant, however, maintained that the appeal had been filed under Section 10 (1) of the Delhi High Court Act, 1966 (hereinafter called the Act of 1966) which provides that an appeal shall lie from the judgment of single judge to the Division Court. As the point was of sufficient importance, the matter was placed before a larger bench. The matter having come up before the bench of three judges, the same was referred to a larger bench as directed by the Full Bench on 22-4-1971. This is how the matter has come up before us.

( 2 ) WE have already held in F. A. O. (O. S.) 6 of 1968 (by seperate judgment of today) that Section 10 (1) of the Act of 1966 provides only a forum of appeal from the judgment of the single judge to a Division Court. We have repelled the argument that the word judgment under Section 10 (1) of the Act of 1966 is to be read as having a meaning which judicial decisions have given to the expression judgment in Letters Patent. According to our judgment, the appeal from the order of a single judge to a Division- Court under Section 10 (1) of the Act of 1966 will lie only against orders mentioned in Section 104 read with Order 43 Rule 1 of the Code of Civil Procedure (hereinafter called the Code ). The contention, therefore that Section 10 (1) of the Act of 1966 confers unfettered right of appeal without any limitation cannot be accepted. In the present case which is under the Arbitration Act a similar bar as is under Section 104 of the code is to be found in Section 39 of the Act which provides that an appeal shall lie from the orders specified therein (and from no others ). Sub-section (2) of Section 39 of the Act also places a restriction that no second appeal shall lie from an order passed in appeal under this Section. The construction of Section 39 of the Act came up for decision before the Supreme Court in The Union of India v. The Mohindra Supply Co. (A. I. R. 1962 S. C. 256) O. There the question was whether an appeal under clause 10 of the Letters Patent of Lahore High Court lay against the judgment of single judge notwithstanding the prohibition of second appeal as provided in sub-section (2) of Section 39 of the Act. Their lordships of the Supreme Court have held that the appeal was not competent, and observed as follows :-

under Section 39 (1) the appeal lies from the orders specified in that sub-section and from no others. The legislature has plainly expressed itself that the right of appeal against the order passed under the Arbitration Act may be exercised only in respect of certain orders. The right of appeal against other orders is expressly taken away. If by express provision contained in S. 39 (1) a right to appeal from a judgment which may otherwise be available under the Letters Patent is restricted, there is no ground for holding that clau