N.M. KASLIWAL, J.—This is an appeal by the defendants against an order of the learned Additional District Judge, Alwar, dated 1st May, 1978, whereby he rejected the application filed under sec. 34 of the Arbitration Act and refused to stay the proceedings of the Civil Suit.

2. Brief facts giving rise to this appeal are that on 29th March, 1976, Prabhu Dayal s/o Bhonrey Lal and Raghunandan s/o Prabhu Dayal filed a suit for the dissolution of the firm Bhonri Lal Hiralal and for rendition of accounts of the firm and for partition and of the movable and immovable properties and for separate possession. The plaintiffs also moved an application for appointment of receiver under order 40 rule 1 C.P.C. On 30th March, 1976, one of the defendants Om Prakash appeared in the trial Court suo-moto and requested that he should be heard before passing any order on the application under order 40 rule 1. The copy of the application and the plaint was given to the defendant Om Prakash and the summons of the suit and notices of the application for appointment of receiver were ordered to be issued for the other defendants. The case was fixed for 15th April, 1976 for hearing arguments on the application for appointment of receiver. I deem it necessary to reproduce the order-sheet dated 30th March, 1976 as most of the arguments have been advanced on the basis of the order passed on 30th March, 1976 :—

^^----------dehkuj dh fjiksVZ ns[kh xbZA odhy oknh Jh bUnzyky feRry mifLFkr gSA odhy oknh ,MoyeZ dksVZ Qhl nkf[ky djus dks legr gS ftlds fy;sa volj pkgrs gS vr% vkxkeh rkfj[k rd ,MoyeZ dksVZ Qhl nkf[ky djsA nkok ntZ jftLVj gksA izfroknhx.k ds uke lEeu tkjh gksaaaaaaaaaaaaaA oknh us nkos ds lkFk nj[okLr tsj vkMZj 40 :y 1 tkCrk nhokuh isk gqbZ gSA izfroknh vkseizdkk gkftj vk;k mlus Jh t;ukjk;.k xqIrk odhy dk odkyrukek isk fd;k o nj[okLr isk dh fd nj[okLr ij dksbZ Hkh vkKk nsus ls iwoZ mls lquk tkosaA udy nj[okLr o udy nkok izfroknh ua- 6 vkseizdkk dks nh xbZA ckdh izfroknh ds uke lEeu nkok o uksfVl nj[okLr tkjh gksA udy nkok o udy nj[okLr lEeu o uksfVlst ds lkFk Hksth tkosA ryckuk izkFkhZ oknh isk djs iftdk rkjh[k 15-4-76 dks isk gksaA nj[okLr dh cgl nmlh fnu lquh tkosxhA^^

3. On 15th April, 1976, Om Prakash and two other defendants Moti Lal and Lalta Prasad filed an application under sec. 34 of the Arbitration Act for staying the proceedings of the suit. The learned trial Court by its order dated 1st May, 1978, rejected the application filed by the defendants under sec. 34 of the Arbitration Act. The defendants aggrieved against the said order of the trial Court, have come in appeal to this court.

4. It is argued by the learned counsel for the appellants that the defendant Om Prakash cannot be said to have taken any other steps in the proceedings as contemplated under sec. 34 of the Arbitration Act, merely by appearing in the court on 30th March, 1976 in order that he might be heard before any exparte order passed on an application for the appointment of receiver. It is submitted that admittedly no written statement has been filed by the defendants and the defendant Om Prakash alone had appeared on 30th March. 1976 merely for the purpose of bringing it to the notice of the learned trial Court that no order may be passed on the application filed by the plaintiffs under O. 40 Rule 1 C.P.C. without hearing him. The defendants were not even aware of the nature and scope of the suit filed by the plaintiff as they had not been served upon with the copy of the plaint or application for appointment of receiver and as such it can not be said that by any stretch of imagination that the defendant had taken any other steps in the proceedings. It is further submitted that the defendants were entitled to the stay of the proceedings of the suit as the plaintiffs were bound to refer the dispute to arbitration in accordance with the arbitration agreement and that the applicants at the time when the proceedings were commenced arid still remained, ready and willing to do all

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