Court includes an appellate Court also.

In this appeal, the learned counsel for the appellant raised a question of law, not covered by any decision of our High Court, as to the powers of an appellate Court to refer the disputes between the parties to arbitration. During the pendency of the appeal A.S.No.29 of 1950, the District Judge of South Kanara, on the joint application of both the parties to the appeal, referred the matter to arbitration ; and on receipt of the award which went against the third respondent, he filed a petition, R.I.A.No.228 of 1952, to set aside the award and to hear the appeal on the merits. Before the learned District Judge, two grounds were taken by the petitioner: (1) that the notices required by section 14 were not given, and (2) that the appellate Court cannot refer a dispute to arbitration and that the reference itself was therefore bad. The learned District Judge negatived both the contentions and held that the reference to arbitration was proper and within the powers of the appellate Court, and accordingly dismissed the petition. As against that order, the present appeal has been preferred. In this appeal, the only contention that was advanced for the appellant was the same as ground No. 2 raised before the learned District Judge, namely, that an appellate Court has no powers to refer the matter to arbitration under section 21 of the Arbitration Act.

The provisions relating to arbitration were originally embodied in schedule II of the Civil Procedure Code. But those provisions were repealed and re-enacted into a separate code by Arbitration Act X of 1940. We have therefore to look to the provisions of that enactment to answer the contention advanced for the appellant. Prior to the enactment of Act X of 1940, there was no difficulty in holding that an appellate Court had powers to refer the disputes between the parties to the appeal to arbitration under schedule II of the Code of Civil Procedure by reason of the provisions of section 107 of the Code, under which an appellate Court is given the same powers and authorised to perform the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. Reference may made to an old decision of our High Court reported in Sankaralingam Pillai, In re1. It is contended for the appellant that after the repeal of the second schedule and the re-enactment of those provisions into a separate Code, it is not open to resort to section 107 of the Code, and emphasis is placed on the words “by this Code,” occurring in clause 2 of that section. But that contention has been answered by a Full Bench decision of the Allahabad High Court reported in Moradhwaj v. Bhudar Das2. The learned Judges held that by reason of section 8 of the General Clauses Act, the provisions of section 107(2) of the Code would still empower an appellate Court to refer the dispute to arbitration. At page 358, their Lordships have observed:

“The Arbitration Act repeals and re-enacts the provisions of schedule II of the Civil Procedure Code. Section 107, Civil Procedure Code, conferred upon the Appellate Court the same powers and the same duties as nearly as may be conferred and imposed by the Code on the Courts of original jurisdiction in respect of suits instituted therein. The word ‘Code’ included schedule II also, and therefore, it was held that under schedule II an appellate Court has, in exercise of the powers conferred upon it under section 107, the power to refer matters to arbitration. The words ‘any other enactment’ in section 8 must, in our opinion, include the non-repealed part of the former enactment. The word ‘Code’ in section 107 would therefore include a reference to the Arbitration Act which has incorporated the provisions of schedule II of the Civil Procedure Code. This would become apparent if the word ‘Code’ in section 107 was amplified and in its place the following words were written: ‘the sections and schedules of the Code’. The repeal of schedu