D.K.SETH, J. - (1.) THE judgment an order dated 17-9-1999 passed the learned Additional District Judge, IInd Court, Dehradun in Appeal No. 85 of 1997 under Section 39 of the Arbitration Act affirming the judgment and order dated 27-5-1996 passed by the learned Civil Judge, Senior Division, Dehradun in Misc. Case No. 101 of 1991 under Section 30/33 of the Arbitra­tion Act has since been challenged in this application under Section 115 of the Code of Civil Procedure.
(2.) MR . Tarun Agarwal, learned Coun­sel for opposite party had taken a prelimi­nary objection that the application under Section 115 of the Code of Civil Proce­dure, hereinafter called as the Code, is not maintainable in view of U.P. Amendment of the said section against an order passed on an appeal. Mr. S.C. Budhwar, learned Senior Counsel assisted by Mr. Anil Sharma, learned Counsel for the applicant, on the other hand contended that since the ap­peal was an appeal under Section 39 of the Arbitration Act it was not an appeal within the meaning of the Code as provided in Section 96 and as such the U.P. Amend­ment cannot be attracted. He further con­tended that the appeal did not arise out of a suit but of a proceeding under Section 33 of the Arbitration Act which takes the matter outside the scope and ambit of the U.P. Amendment of Section 115. He next contends that the appeal being an appeal under the Arbitration Act being Central Legislation, the U.P. Amendment cannot be attracted and Section 115 as contained in the Code irrespective of the U.P Amendment would be attracted and as such this matter can very well be agitated under Section 115 of the Code.
(3.) IN order to examine this proposi­tion it would be beneficial to refer to U.P. Amendment of Section 115 of the Code which is quoted hereunder: “ 115. Revision.-The High Court, in cases arising out of original suits or other proceedings of the value of one lakh rupees and above, including such suits or other proceedings in­stituted before August 1,1978, and the District Court in any other case, including a case arising out of an original suit or other proceedings in­stituted before such date, may call for the record of any case which has been decided by any Court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto..........” ;