S.K. Desai, J.
1. In this appeal, on behalf of the respondents, a preliminary point as to maintainability of the appeal has been taken and we are of opinion that we must dispose of the preliminary point at the outset, since, in our opinion, it has to be negatived by reason of a clear direct decision of the Supreme Court on the very point. In order to appreciate the preliminary point and the observations of the Supreme Court, a few relevant facts may be stated:
2. Arbitration Suit No. 2921 of 1985 was instituted by the plaintiffs under Section 20 of the Arbitration Act, 1940, and the plaintiffs sought an order for filing the arbitration agreement between the parties contained in Clause 20 of the agreement dated September 12, 1981. The plaintiffs also claimed further orders including one for reference to a sole arbitrator. The plaintiffs also filed Arbitration Petition No. 136 of 1985 for interim reliefs. By a common judgment and order dated May 2, 1986, a single Judge of this Court made an order in terms of prayer (a) of the plaint in the suit but with no order as to costs. Thereafter, the parties agreed to refer the dispute to the sole arbitration of a senior counsel of this Court. It was, however, made clear that this was being done without prejudice to the contention of the defendants that there was no binding arbitration agreement or that the same was invalid or could not be ordered to be filed by reason of several contentions which will have to be gone into in this appeal as well as the companion appeals. The single Judge thereafter in paragraph 8 of his judgment considered the application for interim relief (made in Arbitration Petition No. 136 of 1985) and we find that on certain considerations very limited interim relief was granted. Aggrieved by the order giving such limited interim relief and, therefore, denying the substantial interim relief sought for, the original plaintiffs have preferred this appeal. Appeals have also been filed by the defendants to the suit but the preliminary point arises for consideration in the first appeal only.
3. On behalf of the respondents to the appeal, our attention was drawn to Section 39 the Arbitration Act, 1940. Section 39 of the Arbitration Act indicates the appealable orders under the Arbitration Act. Sub-section (I) of Section 39 may be fully extracted:
39. (1) An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order: -
An order-
(1) 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.
Placing reliance on this provision, it was submitted that an appeal would certainly lie from an order filing or refusing to file an arbitration agreement but not from an order of the nature of interim orders passed by the Judge 'which would be covered by the provisions contained in Section 18 of the Arbitration Act.
4. Section 18 of the Arbitration Act reads as under:
18.(1) Notwithstanding anything contained in Section 17, at any time after the filing of the award, whether notice of the filing has been served or not, upon being satisfied by affidavit or otherwise that a party has taken op is about to take steps to defeat, delay or obstruct the execution of any decree that may be passed upon the award, or that speedy execution of the award is just and necessary, the Court may pass such interim orders as it deems necessary.
(2) Any person against whom such interim orders have been passed may show cause against such orders, and the Court after hearing the parties, may pass such further orders as it deems necessary and just.
5. At first blush, the argument seems attractive and if Section 39 alone were to hold the field, the preliminary objection of the respondents to the appeal would be required to be upheld.
6. Counsel for the Appellants, however, draws our attention to observations in Shah Babulal Khimji v. Jayaben : [1982]1SCR187 , which are to the effect that the provisions of the Arbitration Act cannot override the provisions of the Letters Patent. In other words, it was contended that these powers under special enactment confer additional powers of appeal to a larger Bench and cannot restrict the powers of the larger Bench to hear appeals under Clause 15 of the Letters Patent. The relevant observations are to be found in paragraphs 32, 33 and 34 of Shah Rabulal's case, particularly the last-mentioned paragraph. We are clearly bound by these observations and relying on these observations, we will have to hold that although the appeal would not be maintainable under Section 39 of the Arbitration Act, its maintainability will have to be considered under the provisions of Clause 15 of the Letters Patent. As far as Clause 15 of the Letters Patent is concerned, it is now well settled that an appeal would lie from a decision of the Court refusing interim relief, since, as far as the party seeking interim relief is concerned, the order finally disposes of the proceeding in which interim relief is sought. If that be so, it would be a 'judgment' within the meaning of Clause 15 of the Letters Patent and an appeal would lie therefrom to a larger Bench.
7. In this view of the matter, the preliminary objection is required to be rejected and the appeal is held maintainable. The appeal is now directed to proceed on merits.