P K THRESIA Vs. GOVERNMENT OF THE STATE OF KERALA

JUDGEMENT

(1.) VAROO was a Government Contractor. He died on 13-5-1977 before completion of a work he had undertaken to execute. The 1st respondent-State entrusted the execution of the balance work to one Joseph. VAROO's widow and children, the revision petitioners, then filed a suit under Section 20 of the Arbitration Act, 1940, (for brevity, the Act). The lower Court allowing the suit has made an order of reference to the appointed arbitrator --the Chief Engineer (Arbitration) -- as per its decision dated 28-10-1978. The points referred are :--

(2.) AS per order on I. A. 467 of 1978 the lower Court had restrained the respondents (the 2nd respondent is the concerned Superintending Engineer) from altering, modifying, destroying or In any way changing the work already carried out by Varoo till 'proper measurements* thereof are taken. On 28-101978 the lower Court dismissed this application on the ground that the suit has been disposed (A In C. R. P. No. 3348 of 1978 directed against this order of dismissal of I. A. 467 of 1978 it is contended that the lower Court should have continued the injunction granted and that the lower Court has, notwithstanding the disposal of the suit under Section 20 of the Act, power to grant interim injunction. The learned counsel for the revision-petitioners rely on Section 41 (b) of the Act and Item 4 in the Second Schedule to the Act,

(3.) THE learned Government Pleader raised a preliminary objection to the maintainability of C. R P. 3348 of 1978 on the ground that the order dismissing an application for temporary injunction is an order appealable under Order XLIII Rule 1 (r) of the Civil P. C. 1908. Section 41 of the Act, by Clause (a) thereof makes the provisions of the Code applicable to all proceedings before Court, and to all appeals, under the Act, but subject to the provisions of the Act and the Rules thereunder. THE provisions in the Code conferring right of appeal have to be read subject to Section 39 of the Act; this means that only such orders passed under the Act as are mentioned therein are appealable. See Gopal v. Sundari (AIR 1955 Pat 277 (280)). THErefore, Section 104 (1) (i) of the Code read with Order XLIII Rule 1 (r) therein does not govern an order passed on an application for interim injunction filed under Section 41 of the Act, be it under Clause (a) or Clause (b) thereof. THEre is no merit in the preliminary objection,