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IN THE HIGH COURT OF ALLAHABAD
Agarwala and P. L. Bhargava, JJ.
SRI KRISHEN - Appellant
Versus
RADHA KISHEN - Respondents
Civil Revn. 363 Of 1948
Decided On : 09/15/1950
ARBITRATION ACT - SECTION 39 - APPEAL - ORDER DISMISSING APPLICATION FOR RESTORATION OF SUIT DISMISSED FOR DEFAULT - APPEAL LIES - ORDER 17, RULE 3, CIVIL PROCEDURE CODE - DISMISSAL ON MERITS - APPLICATION FOR RESTORATION NOT MAINTAINABLE.
Fact of the Case:
The applicants filed an application to set aside an ex parte award under Section 33 of the Arbitration Act. The application was allowed ex parte, but later the ex parte order was set aside, and a fresh date was fixed for the final hearing. The applicants were absent on the date fixed for the hearing, and the court dismissed the suit under Order 17, Rule 3, Civil Procedure Code (CPC). The applicants then applied to the court to set aside the ex parte order passed on that date, but the court rejected the application on the ground that it was an order passed under Order 17, Rule 3, CPC, and could not be set aside. The applicants then filed an appeal in the lower appellate court against the dismissal of their application for restoration. The lower appellate court dismissed the appeal on the ground that no appeal lay to that court against an order dismissing an application for restoration under the provisions of the Arbitration Act.
Finding of the Court:
The court held that an appeal lies when an application for restoration of an application made under the Arbitration Act is dismissed for default. However, the court also held that the order passed by the trial court on the date of the hearing was an order on merits under Order 17, Rule 3, CPC, and therefore, no application for restoration of the case was maintainable. The court further held that the appeal filed before the lower appellate court was rightly dismissed, though the reasons for the dismissal given by the lower appellate court were not correct.
Issues: 1. Whether an appeal lies against an order dismissing an application for restoration of a suit dismissed for default under the Arbitration Act? 2. Whether an application for restoration is maintainable when the court has passed an order under Order 17, Rule 3, CPC?
Ratio Decidendi: 1. Section 39 of the Arbitration Act provides for appeals against certain orders passed under the Act, but it does not exclude the applicability of the appellate provisions of the CPC except to the extent to which appeals are allowed by Section 39. The words "and from no others" in Section 39 refer to orders passed under the express provisions of the Act and not to appeals which the CPC provides from orders passed under the provisions of that Act. 2. An application for restoration is not maintainable when the court has passed an order under Order 17, Rule 3, CPC, dismissing the suit on merits. The order of the court must be interpreted to determine whether it intended to proceed under Order 17, Rule 3 or Order 17, Rule 2. If the court expressly passes an order under one of the two Rules, the aggrieved party should file an appeal against the order, which is in fact a decree, and not apply for restoration.
Final Decision: The court dismissed the revision petition with costs.
( 1 ) THIS is an application in revision and has arisen under the following circumstances :
( 2 ) THE applicants made an application for the setting aside of an award under Section 33, arbitration Act, and the application was allowed ex parte because the opposite-parties were not present. Later on the ex parte order was set aside and a fresh date for final hearing was fixed. Several adjournments of the date fixed for hearing were made at the instance of the applicants and the last date so fixed was 19-5-1947. On this date also, the applicants were absent while the opposite parties were present and the Court passed the following order:
"the plffs. are absent, the defts. are present ready to proceed. This was a date which was fixed for hearing after the plffs. had already sought an adjournment. Hence the suit decided under order 17, Rule 3, Civil P. C. ; Order. The suit be dismissed with costs. "
( 3 ) THE plffs. then applied to the Court for setting aside the ex parte order passed on 19-5-1947. The Court rejected this application on the ground that the order of the 19th May was an order passed under Order 17, Rule 3, Civ. P. C. and could not be set aside by him. The applicants then filed an appeal in the lower appellate Court against the dismissal of their application for restoration. The lower appellate Court considered that though the trial Courts order of 19-5-1947, was a dismissal for default and not a dismissal on merits yet because no appeal is provided against the dismissal of the application for restoration under the provisions of the arbitration Act the appeal was incompetent. It, therefore, dismissed the appeal. The present application in revision is directed against this order.
( 4 ) IT has been urged that the view of the lower appellate Court that no appeal lay to that Court against an order dismissing an application for restoration made under Order IX, Rule 9, Civ. P. C. was erroneous. We think that this contention is sound. Section 41 of the Arbitration Act makes the provisions of the Code of Civil Procedure applicable to all proceedings before the court, but "subject to the provisions of the Act and of Rules made thereunder. "
( 5 ) LEAVING apart the phrase "subject to the provisions of the Act and of Rules made thereunder, for the time being let us consider the effect of the application of the provisions of the Code of Civil procedure to all proceedings under the Arbitration Act. The provisions of the Code of Civil procedure, of course include provisions applicable to suits and to reviews, references, revisions and appeals. Where, therefore, the entire body of the provisions of the Code of Civil Procedure is made applicable to a certain proceedings all such procedure as is provided for in the Code of civil Procedure whether it is in relation to the first Court trying a suit or it is in respect of appeals, review, or revision, becomes applicable to those proceedings. When the provisions of the Civil Procedure Code are made applicable subject to the provisions of a particular Act all such provisions of the Civil Procedure Code, which are inconsistent with the provisions of the act, are to be deemed as not having been made applicable to the proceedings under the Act. The only provision of the Arbitration Act which is said to be inconsistent with the right of appeal, as pointed out to us, is contained in Section 39 of the Act which reads as follows:
39 (1) "an appeal shall lie from the following orders passed under this Act (and from no 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 arbitration agreement. (vi) setting aside or refusing to set aside an award: provided that the provisions of thi
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