G. D. Dube, J. - (1.) A preliminary objection about the maintainability of this appeal has been raised by learned counsel for the respondents. In a suit filed by the respondents for accounting etc. before the lower court, an application under section 34 of Arbitration Act (hereinafter referred to as the Act) was moved by the respondent for referring the dispute to arbitration and staying the proceedings of the suit. An application was moved by the respondents for appointment: of a receiver. The trial court allowed both the applications Aggrieved by the order relating to appointment of receiver, this appeal has been filed under Order 43 (1) (d) of the Code of Civil Procedure,
(2.) LEARNED counsel for the respondents drew our attention to section 41 of the Act which reads as under : "41. Procedure and powers off Court :-Subject to provisions of this Act and of rules made thereunder- (a) the provisions of the Code of Civil Procedure 1908, shall apply to all proceedings before the Court, and to all appeals, under this Act, and (b) the Court shall have, for the purpose of, and in relation to arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court : Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters." Elaborating his arguments,, learned counsel urged that, according to sub-section (b), the courts in relation to arbitration proceedings have the same powers of making orders in respect of any of the matters set out in the second schedule of the Act as it has in relation to proceedings of the Court. The Court has under clause 4 of second schedule the powers to appoint a receiver. It was, therefore, contended that the exercise of such a power of appointment of a receiver Is not appealable under section 39 of the Act. Learned counsel cited some case laws in support of his contention.
(3.) LEARNED counsel for the appellant urged that the impugned order was passed in a proceeding before the court in a regular suit. The dispute has yet not been referred to arbitration. The lower court has only exercised the powers under section 34 of the Act and directed that the suit be stayed. The trial court has directed the parties to name their arbitrators. The impugned order was passed in a regular suit, and not during the pendency of any arbitration proceedings and in exercise of the powers under section 41 read with clause 4 second schedule of the Act. Hence as the court has exercised its power u/o. 40 for appointment of receiver the general provision of order 43 of the Code of Civil Procedure shall apply.;