JUDGMENT

D.S. Mathur, J. - This order shall govern Civil Revision Nos. 149 and 150 of 1963, both by the Union of India and two others, against the order of the Civil Judge of Varanasi entertaining the applications of M/s Gopal Dass and Co. and appointing an arbitrator under Sec. 8 of the Arbitration Act.

2. The material facts of the case are that the opposite party, M/s. Gopal Dass and Co., was given two contracts after execution of agreements each containing an arbitration clause. The arbitration clauses are similar. In the event for any question or dispute arising under or in connection with the contract except as to any matter the decision of which was specifically provided for by the conditions of the contract the same was to be referred to the arbitration of a sole arbitrator nominated by the General Manager of the North Eastern Railway. The decision of the arbitrator was to be final and binding on the parties. In case of the arbitrator leaving the arbitration unfinished on account of his transfer or otherwise the General Manager was to nominate another arbitrator in his place and the arbitrator so nominated would have the same powers as the one originally nominated. Such an arbitration clause is contained in Para. 33 of the agreement (Ex. A-6) of Civil Revision No. 150 of 1963. The arbitration clause in the other case (Civil Revision No. 149 of 1963) is contained in para. 62 of the agreement (Ex. A-l). This clause provides that:

"Any question or dispute arising under this agreement (except those for the final decision of which provision is made in this agreement) shall be referred to the arbitration of a Railway Officer not below the rank of Junior Administrative Officer appointed by the General Manager of the North Eastern Railway at the request of either of the parties and the decision of the said arbitrator shall be final and binding on the parties and not open to challenge or review ....."

3. From the above clauses of the two agreements it is evident that all the questions or disputes arising under the agreement (other than those on which the decision of the competent authority is final) were to be referred to the arbitration of a sole arbitrator to be appointed or nominated by the General Manager of the North Eastern Railway. Such disputes could not be raised before the Courts of law unless the arbitrator was moved and made an award and in such a case only the question of the validity of the award could be raised before the Courts of law.

4. Certain disputes arose between the parties whereupon the opposite party, M/s Gopal Dass and Co. served notices upon the General Manager of the North Eastern Railway calling upon him to appoint or nominate the sole arbitrator within 15 days, and when the General Manager did not so appoint or nominate an arbitrator, M/s Gopal Dass and Co. moved two applications under Sec. 8(2) of the Arbitration Act for the appointment of a sole arbitrator. The learned Civil Judge allowed both the applications and appointed Sri K. C. Srivastava, retired District and Sessions Judge and now practising as an advocate, as the sole arbitrator. It may here be noted that in both the cases the General Manager appointed or nominated the sole arbitrator during the pendency of the present proceedings. One of the points for consideration is whether the present applications under Sec. 8(2) of the Arbitration Act were maintainable. If the applications were maintainable, the other point for decision shall be whether it was necessary for the Civil Judge to appoint the nominee of the General Manager as the sole arbitrator or he could so appoint any independent person.

5. Where all the parties to the arbitration agreement refer their disputes to the arbitrator, the arbitration takes place without the intervention of the court and such arbitration is governed by Chapter II of the Arbitration Act. However, where disagreement is on the appointment of an arbitrator or umpire, though arbitration can take place without the