KUMARAYYA, J. - (1.)The preliminary objection taken to the entertainment of this appeal is that no appeal under clause 15 of the Letters patent lies in view of the clear language of section 39(2) of the Arbitration Act (Act 10 of 1940). Section 39 reads:-
"(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 an arbitration agreement;

(vi) setting aside or refusing to set aside an award ;

Provided that the provisions of this section shall not apply to any-order passed by small cause court.

(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme court."

(2.)The matter does not require an elaborate discussion in view of the pronouncement of the Supreme court in The union of India v. Mohindra supply and Co., A.I.R. 1662 S.C. 256 in civil Appeal No. 112 of 1958 which was preferred from the decision of the Punjab High Court A.I.R. 1954 Fun-211 F.B. There on a consideration of the decision of the Madras High Court in Radhakrishnamurthi v. Ethirajulu Chetty and Co., I.L.R. 1945 Mad. 564 and later Full Bench decision of the same High Court in Mulchand kawal chand Daga v. Kissan dass Gridhardass, I.L.R. 1961 Mad. 809 which took a different view, 'but Rajmannar, C J. had dissented therefrom, and also the decision of the Bombay High court in Madhavadas v. Vithaldas, A.I.R. 1952 Bombay 229 which accorded with the view expressed in ILR 1945 Mad. 564 and also decision in Hanuman chamber of commerce Ltd Delhi v. Jassa Ram Hiranand, A.I.R. 1948 Lahore 64 and Banwarilal v. Hindu College, A.I.R. 1949 East Punjab 165 which seem to be favourable to the appellants herein, their Lordship preferred to approve the view taken by the Madras High Court in Radha Krishna Murthi v. Ethirajulu Chetty and Co., I.L.R. 1945 Mad. 564 and the dissenting view of Rajmannar C.J., referred to above, and the view taken by the Bombay High Court and held that where a single Judge disposes of an appeal under section 39(1) of the Arbitration Act, 1940, there can be no further right of appeal under clause 10 of the Letters patent of the Punjab High Court corresponding to clause 15 of the Letters patent of the Madras High Court with which we are concerned. It was observed that section 39(2) of the Arbitration Act prohibits a Second appeal from an order passed in appeal under Section 39(1) except an appeal to the Supreme court, that the expression "second appeal" does not mean an appeal under section 100 of the Code of Civil procedure and that it means a further appeal from an order passed in appeal under Section 39(1). In view of this pronouncement, it cannot be now contended that an appeal under clause 15 of the Letters patent can lie notwithstanding section 39(2) of the Arbitration Act Section 39(2) has an over-riding effect and clause 15 can be given effect to only subject there to and not in contravention thereof. The contention of Mr. B.V. Subbarayydu therefore prevails. This LPA is dismissed in limine as not maintainable in law in view of the provisions of the Arbitration Act.
L.P.A. dismissed.

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