A.N. Varma, J. - (1.) THIS civil revision is directed against an order passed by the learned Civil Judge, Bulandshahr appointing a receives in an application filed by the Opp. Parties under Section 20 of the Arbitration Act registered as Suit No. 427 of 1981. The relevant facts are that the plaintiff opp. parties filed an application under Section 20 of the Arbitration Act in the court of learned Civil Judge, Bulandshahr with a prayer that the dispute, regarding accounting and distribution of assets of dissolved firm of which the plaintiffs and the defendant -applicants were partners, be referred to the arbitrators Nawab Singh and Pursottam Sharma after appointment of an umpire by the Court.
(2.) THE application was based on the assertion that the plaintiffs and the defendants had entered into a partnership agreement dated, 13.1.1976 for carrying on a cinema business under the name and style Chandra Lekha Theatre at Anoop Shahr District Bulandshahr; As per terms of the partnership agreement accounts were to be rendered and settled every month but Mahendra Prakash, who was the accounting party, failed to render any accounts and further failed to pay a single paisa towards the plaintiff's share in the profits of the business. Under Clause 18 of the partnership agreement, there was a provision for reference for arbitration in case of any dispute or difference between the partners with respect to the partnership agreement through the arbitration of one arbitrator to be appointed by the plaintiffs and one by the defendants. By a notice dated, 14.10.1981 the plaintiffs appointed Sri Nawab Singh as their arbitrator and called upon the defendants to appoint their arbitrator. The defendants vide their reply dated, 26.10.1981 appointed one Sri Pursottam Sharan as their arbitrator. Disputes between the plaintiffs and the defendants having arisen the plaintiff desires that the same be referred to the aforesaid arbitrators and an umpire to be nominated by the court with the consent of the said arbitrators. In case the named arbitrators refused to accept the reference, or enter upon the same, the arbitrators and the umpire be appointed by the court for the purpose. During the pendency of the above application the plaintiffs moved an application for the appointment of a receiver which was rejected by an order dated 22.4.1982. The application was numbered 6 -C and the same was rejected with the observation that there was at present no necessity for appointing any receiver. It appears that subsequently the court below was again requested by the plaintiffs to appoint a receiver by means of an application supported by an affidavit. The defendants -applicants filed an objection thereto and 1.2.1983 was fixed. The defendants did not appear on that date. The court thereupon ordered that the case shall proceed ex -parte. Later on the defendants applied for setting aside of the order passed by the court below for proceeding ex -parte. The court fixed 16.1.1984 for the consideration of the defendants application. On that dale again, the defendants applicants did not appear whereupon the court below on the basis of the uncontroverted averments made in the affidavit filed by the plaintiffs opp. parties (Paper No. 58C) allowed the application of the plaintiffs and appointed Sri Prashant Kumar, Advocate, as a receiver in respect of the business and property of Chandra Lekha Theatre. The defendants -applicants have applied before the court below for setting aside of this ex -parte order and have simultaneously fired this revision.
(3.) SRI Vijay Prakash, learned counsel for the applicants, submitted that the impugned order is without jurisdiction in as much as the application filed by the plaintiffs -opp. parties is not maintainable under Section 20 of the Arbitration Act. It was urged that the said application is in truth and substance an application under Section 8 of the Arbitration Act. Hence the court below Could not exercise powers under Section 41(b) of the Arbitration Act.;