Prohibition for filing second appeal is also applicable to L.P.A. also.

K.Govindarajan, J.

The above appeal is filed against the order dated 19.12.2000 in C.M.A.No.874 of 1998 passed by the learned single Judge of this Court.

2. We need not go into the merits of the case, in view of the preliminary objection raised by the learned counsel for the respondents regarding maintainability of the above appeal.

3. According to the learned counsel for the respondents, second appeal is not maintainable, as barred under Section 39(2) of the Arbitration Act, 1940. To appreciate the said condition, it is beneficial to extract Section 39 of the Arbitration Act, 1940, which reads as follows:

" Section 39: Appealable orders.

(1) An appeal shall lie from the following orders passed under this Act and from none others to the court authorised by law to hear appeals from original decrees of the court passing the order:

An order--

(i) superseding an arbitration;

(ii) on an award stated in the form of a special case;

(iii) modifying or correcting an award;

(iv) filing or refusing to file an arbitration agreement;

(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;

(vi) setting aside or refusing to set aside an award:

Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court.

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

Section 39(2) of the Arbitration Act prohibits filing of a second appeal from an order passed in appeal, which is dealt with under Sub Section (1). Now, the question is whether such a prohibition will apply even to the appeals under Clause 15 of the Letters Patent.

4. Originally, in RADHAKRISHNAMURTHY V. ETHIRAJULU CHETTY & CO. (AIR 1945 Madras 184), a Division Bench of this Court held that the Arbitration Act, being an Act of the Central Legislature, the provisions of Section 39 of that Act must prevail over Clause 15 of the Letters Patent, and therefore, in the case of an order passed in appeal under Section 39 of the Arbitration Act, no second appeal lies under Clause 15 of the Letters Patent by reason of Section 39(2) of the Act.

5. The said judgment has been over-ruled by a decision of the Full Bench in MOOLCHAND KEVALCHAND DAGA V. KISSINDOSS GIRIDHARDOSS (1974 L.W. 408), holding that the expression "Second Appeal" in Section 39(2) of the Arbitration Act would not apply to an appeal under Clause 15 of the Letters Patent from one Judge of the High Court to two or more Judges of the same Court. The above-said principle held in the said judgment has been declared as not good law by the Supreme Court in UNION OF INDIA V. MOHINDRA SUPPLY CO. (AIR 1962 SC 256). The Apex Court has held as follows:

"(5)The problem to which attention must then be directed is whether the right to appeal under the Letters Patent is at all restricted by S.39, Sub-ss. (1) and (2). Clause 10 of the Letters Patent of the High Court, in so far as it is material, provides:

"And we do further ordain that an appeal shall lie to the said High Court ............... from the judgment (not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction ........) of one Judge of the High Court....."

By this clause, a right to appeal except in the cases specified, from one Judge of the High Court to a Division Bench is expressly granted. But the Letters Patent are declared by Cl.37 subject to the legislative power of the Governor-General in Council and also of the Governor-in-Council under the Government of India Act, 1915, and may in all respects be amended or altered in exercise of legislative authority. Under S.39(1), an appeal lies from the orders specified in that sub-section and from no others. The legislature has pl