G. M. LODHA, J. - (1.) THIS is a civil revision petition filed by the defendants-petitioners against the order of the District Judge, Jaipur City, Jaipur.
(2.) HAVING heard the learned counsel for the parties, I find that the principal question raised in this case, whether the order of the lower court directing that the applications, one under 0. 39 R- 1 & 2 CPC and another under O. 40 R. 1, CPC filed by the plaintiff-non-petitioner No. 1, Damodar and the application under S. 34 of the Arbitration Act filed by the defendants-petitioners, would be decided simultaneously; suffers from any error of jurisdiction as contemplated by S. 115 C. P. C. The lower court has come to the conclusion that the court has got jurisdiction to pass an order of injunction for appointment of the Receiver under S. 34 of the Arbitration Act inspite of the stay procedure and, therefore, ordered that the application under S. 34 of the Arbitration Act, will be heard and decided simultaneously so far as the injunction application and, application for appointment of Receiver are concerned. The crucial question which has been canvassed by Shri D. D. Patodiya, the learned Advocate, on behalf of the applicant-petitioners, is that when there is arbitration clause in the partnership deed, the plaintiff-non-petitioner No. 1, should not have rushed to the court of law. He could have proceeded only under the provisions of the Arbitration Act. The defendants-petitioners filed application under S. 34, of the Arbitration Act for the stay of the proceedings.
(3.) ACCORDING to him, the effect of such proceedings will be that the application under O. 39 Rr. 1 & 2 CPC and under 0. 40 R. 1, CPC, would not be heard. In such circumstances, Shri Patodiya. argued that it was imperative for the lower court to hear and decide the application under S. 34 of the Arbitration Act; and the proceeding to hear the application for injunction and appointment of Receiver should only be taken if the same is dismissed. Shri Patodiya, submitted that the finding of lower court that under S. 47 of the Arbitration Act inspite of the stay, under S. 34 of the Arbitration Act the court can proceed, is in excess of its jurisdiction. According to him, S, 41 empowers for the appointment of Receiver or bearing of the injunction application only for the purposes of arbitration proceedings before the court, and not otherwise.;