WALCHANDNAGAR INDUSTRIES LIMITED Vs. NASIK SAHAKARI SAKHAR KARKHANA LTD.

JUDGEMENT

(1.) THE present Notice of Motion has been taken out by the plaintiffs under section 17 of the Arbitration Act for passing a judgment and decree in terms of the Award dated 10th February, 1987. After passing of the aforesaid award, the defendants on 7th July, 1987 filed a petition bearing No. 147 of 1987 for setting aside the award. By judgment and order dated 7th April 1989 the said petition was dismissed. Being aggrieved the defendants on 27th April, 1989 preferred, under section 39 of the Arbitration Act Appeal No. 683 of 1989 and by an order dated 7th July, 1989 the Appeal Court was pleased to admit the same. The present Notice of Motion has been taken out by the plaintiffs on 16th July 1989. The plaintiffs have annexed at Exhibit -B to the affidavit in support a certificate of the Prothonotary and SR. Master which recites the aforesaid facts namely that the petition for setting aside the award has been dismissed and the appeal therefrom is pending.

(2.) THE short question that arises for my determination is whether the plaintiffs are entitled to a decree in terms of the award in the face of the pendency of the appeal filed by the defendants against the dismissal of their application for setting aside the award.

(3.) MR . Bharucha further contended that even in equity the plaintiffs would be entitled to a decree as the award in question does not and cannot grant any interest. In case the passing of the decree is differed till the disposal of the appeal, the plaintiffs would be deprived of the interest till the disposal of the appeal. He submitted that even if the order dismissing the petition for setting aside the award cannot be construed as a decree as defined under section 2(2) of the Civil Procedure Code and has to be construed as an order even then the provisions of Order 41, Rule 5 of the Civil Procedure Code will be applicable even though the same has not been specifically incorporated in Order 43 which deals with Appeals from Orders. He, therefore, prayed that the Notice of Motion be made absolute.