M. C. JAIN, J. - (1.) THIS is an appeal under Sec. 18 of the Rajasthan High Court Ordinance, 1949 (for short 'the Ordinance') against the judgment of the learned Single Judge of this Court dated November 8, 1985 affirming the order dated December 8, 1976 passed by the District Judge, Pratabgarh.
(2.) THE matter arises out of the proceedings under the Arbitration Act. THE Arbitrators filed their Award against which objections were filed before the learned District Judge, Pratabgarh by his order dated December 8, 1976 rejected the objections and made the Award rule of the Court against which an appeal was preferred by the objector Shri Chhabildas. That appeal was dismissed, Mr. D. S. Shishodia appearing for respondent No. 1 as Caveator raised a preliminary objection against the maintainability of the appeal. He submitted that the appeal is barred under sub-sec. (2) of Sec. 39 of the Arbitration Act. Sub-sec. (2) of Sec. 39 bars the second appeal from an order passed in appeal under sec. 39 and the only saving that is provided is with regard to the appeal to the Supreme Court. In view of sub-sec. (2) of Sec. 39, this special appeal under Sec. 18 of the Ordinance is not competent. He placed reliance on the Supreme Court decision in Union of India vs. Mohindra Supply Company (l) and the decision of this Court in Sardarlal vs. Umraolal Gupta (2 ). "39. Appealable orders- (l) An appeal shall lie from the following orders passed under this Act to the Court authorised by law to hear appeals from original decree of the court passing the orders:- 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 a Small Cause Court. (2) No second appeal shall lie from an order passed in appeal under the section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court. (a) Substituted for "his Majesty in Council by A. L. D. 1950". Sec. 18 of the Rajasthan High Court Ordinance reads as under:- "18. Appeal to the High Court from Judges of the Court:- (1) An appeal shall lie to the High Court, from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court and not being and order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under Sec. 43 or in the exercise of criminal jurisdiction) of one Judge of the High Court. (2) Notwithstanding anything hereinbefore provided, an appeal shall lie to the High Court from a judgment of one Judge of the High Court made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the High Court where the Judge who passed the judgment declares that the case is a fit one for appeal. "
(3.) HOW the words "second appeal" occurring in sub-sec. (2) of Sec. 39, are to be construed came up for consideration before the Supreme Court in the case of Union of India (supra ). Their Lordships clearly observed that "in that premise the conclusion is inevitable that the expression "second appeal" used in s. 39 (2) of the Arbitration Act means a further appeal from an order passed in appeal under sec. 39 (1) and not in appeal under sec. 100 of the Civil Procedure Code. Their Lordships expressed agreement with the view taken in Madhavdas v. Vithaldas (3) by Savdekar, J. and Mulchand Kewalchand Daga vs. Kissan Dass Girdhardass (4) by Rajamannar, C. J. expressed that we agree with the learned Judges that the adjective "imports a further appeal, that is, numerically second appeal. " Their Lordships further considered the question in the light of the provision of the Letters Patent and the subsequent change brought about in law and the legislative history of the provisions of appeal under the Civil Procedure Code, and with regard to the Arbitration Act, their Lordships observed as under- "the Arbitration Act, which is a consolidating and amending Act, being substantially in the form of a Code relating to arbitration must be construed without any assumption that it was not intended to alter the law relating to appeals. The words of the statute are plain and explicit and they must be given their full effect and must be interpreted in their natural meaning, uninfluenced by any assumptions derived from the previous state of the law and without any assumption that the legislature must have intended to leave the existing law unaltered. In our view the legislature has made a deliberate departure from the law prevailing before the enactment of the Act X of 1940 by codifying the law relating to appeals in S. 39. ";