- (1.) THIS appeal has been referred to a division Bench by Bapna J. , as an important point of law whether a dispute in a pending appeal can be referred to arbitration was involved in it.
(2.) A suit was filed by the Bundi Electric Supply Co. Ltd. , Bundi, against the municipal Board of Bundi on 1st July 1952, for refund of certain moneys collected from it by way of octroi duty and also for an injunction restraining the defendant from collecting octroi duty from it in future. The suit was partly decreed and an injunction was issued restraining the defendant from collecting octroi duty from the plaintiff in future. The defendant went in appeal to the Court of the Civil Judge, Bundi, but it was dismissed on 19th December 1953. The defendant filed a second appeal in this Court. While that appeal was pending an application was moved by both the parties on 14th September 1956 for referring the matter in dispute in the appeal to arbitrators. The petition came up before Bapna J. , who has referred the case to this Bench.
(3.) THE decision of the case depends upon interpretation of Section 21 of the Indian arbitration Act (hereinafter referred to as the Act) as to whether the term "suit" and the term "court" used therein are wide enough to include an 'appeal' and an 'appellate Court' respectively. Section 21 is as follows : "where in any suit all the parties interested agree that any matter in difference between them in the suit shall be referred to arbitration, they may at any time before Judgment is pronounced apply in writing to the court for an order of reference". The term "court" has been defined in Section 2 (c) of the Act as follows : " 'court' means a Civil Court having jurisdiction to decide the questions forming the subject-matter of the reference if the same had been the subject-matter of the suit, but does not, except for the purpose of arbitration proceedings under Section 21, include a Small Cause Court. " According to the definition as contained in Section 2 (c) of the Act "court" means a "civil Court" having jurisdiction to decide the questions forming the subject-matter of the reference if the same had been the subject-matter of the suit. An appellate civil Court in exercise of its appellate jurisdiction has got co-extensive powers with those of an original Court except as limited by special provisions contained in the civil Procedure Code. Such portion of the subject-matter of a suit as is also the subject-matter of an appeal falls within the jurisdiction of an appellate Court and questions forming the subject-matter of a reference relating to such subject-matter of appeal lie within the competence of an appellate Court. An appellate court should, therefore, be considered to be a 'court' within the definition of the term as contained in Section 2 (c) of the Act. There is no reason to put a restricted meaning on the term 'court' so as to limit its application to an original Court only.;