Order of Single Judge held appealable u/s 15 of the letter patent.

This is an appeal from the judgment of Ramaswami, J., in A.A.O. No. 531 of 1954. That appeal was preferred against the order made by the learned City Civil Judge, Madras, in I.A. No. 676 of 1954 in O.S. No. 538 of 1954. The application was made under section 34 of the Indian Arbitration Act for stay of the suit on the ground that the remedy of the plaintiff was to resort to arbitration. The learned City Civil Judge, however, dismissed the application and refused to grant stay. There was an appeal to this Court (C.M.A. No. 531 of 1954). The appeal itself was filed under section 39 (1) (v). of the Indian Arbitration Act. Ramaswami, J., allowed the appeal and set aside the order of the learned City Civil Judge, and granted the application for stay of the suit. This appeal is by the plaintiff from that order.

A preliminary objection was taken on behalf of the respondent before us that the appeal is incompetent, and reliance was placed on section 39(2) of the Indian Arbitration Act and the rulings of this Court in Radhakrishnamurthy v. Ethirajulu Chetty & Co1, and Co-operative Insurance Society v. Bapi Raju2. Undoubtedly, the decision in Radhakrishnamurthy v. Ethirajulu Chetty & Co1, directly supports, the preliminary objection. There, it was held by Sir Lionel Leach, C.J., and Shahabuddin, J., that an appeal under clause 15 of the Letters Patent against the judgment of a single Judge of the High Court setting aside an order of the City Civil Court under the provisions of section 39 of the Indian Arbitration Act, 1940, is barred by reason of sub-section (2) of the said section. The reasoning of this decision is contained in the following passage from the judgment of the learned Chief Justice:

“It is true that clause 15 of the Letters Patent if it stood alone, would allow the appeal; but clause 44 of the Letters Patent says that the provisions are subject inter alia to the legislative powers of the Governor-General in Legislative Council. The Indian Arbitration Act is an Act of the Central Legislature and the provisions of section 39 must prevail”.

This ruling was followed by another Division Bench in Co-operative Insurance Society v. Bapi Raju2. The same view has been taken by the Bombay High Court in Madhavdas Devidas v. Vithaldas Vasudevdas3, and by the Calcutta High Court in R. Wright and Partner, Ltd. v. Governor-General in Council4. On the other hand, a contrary view was taken by the Lahore High Court in Hanuman Chamber of Commerce v. Jassa Ram5, and by the East Punjab High Court in Mohindra Supply Co. v. GovernorGeneral in Council6, the latter being the decision of a Full Bench. it is true that clause 44 gives ample power to the Legislature to take away-right of appeal conferred by clause 15 of the Letters Patent. But, before it can be held that such a right of appeal has been abrogated, there should be an express provision to that effect, or there should be some provision necessarily implying such abrogation. We find nothing prima facie in section 39 (2) of the Indian Arbitration Act which expressly takes away the right of appeal from one learned Judge to a Division Bench of this Court; nor can we find any language in section 39 (2), which of necessity would imply that such an appeal would be incompetent. We are not expressing any final opinion, as we are bound by the decisions in Radhakrishnamurthy v. Ethirajulu Chetty and Co.1and Co-operative Insurance Society v. Bapi Raju2. But, we are convinced that the decisions in Radhakrishnamurthy v. Ethirajulu Chetty and Co.1, should be re-considered. The appeal will be posted before a Full Bench.

In pursuance of the order of reference the appeal came on for hearing before a Full Bench.

D. Ramaswami Ayyangar and V. Krishnaswami, for Appellant.

S. Vaidyanathan for A.K. Muthuswami, for Respondent.

The opinion of the Full Bench was delivered by

Rajamannar C.J.†-This appeal originally came before a Division Bench of this Court. A preliminary objection was taken on behalf of th