# UNION OF INDIA v. MOHINDRA SUPPLY COMPANY

- **Citation:** [1962] 3 S.C.R. 497
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** K. N. Wanohoo, K. c. DAS GUPTA, J. c. SHAH, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-mohindra-supply-company-2456
- **Pages:** 18

## Headnote

Arbitration-Order of Subordinate .Judge refuoing to ut
a•ide award-Appeal to High Court-Single .Judge allowing
appeal-Letters Patent Appeal, whethEr maintainab/£-InterpreX
tation of codifying
statu!e.•-lndian Arbitration Act, 1940
(X of 1940) s. 39(2)-Letters Patent of Lahore High Court, cl.JO.
A dispute between the appellant and the respondent
arising out of a contract for the supply of fuel was referred to
arbitration. The arbitrators gave an award directing the
appellant to pay a certain sum of money to the respondent' and
filed the award in the court of the Subordinate Judge. The
ilppellant made an application for setting aside the award
but it was rejected.
A~ainst this order the appellant preferred
,
an appeal to the High Court under s. 39(1) of the Indian Arbitration Act, 1940, and a Single Judge allowed the appeal and
set aside the award. Thereupon the respondent filed a Letter.
Patent Appeal against the judgment
of the Single Judge.
This appeal was allowed, the judgment of the Single Judge
was set aside and the order of the Subordinate Judge was
restored. The appellant contended that the Letters Patent
Appeal was incompetent ass. 39(2) barred a second appeal
from an order passed in appeal under s. 39 ( 1).
'
Held, that an appeal against the appellate order of the
Single Judge was barred by s. 39(2) of the Arbitration Act.
The expression "second appeal" ins. 39(2) means a further
appeal from an order passed in appeal under s. 39(1) and
not an appeal under s. 100 of the Civil Procedure Code, and
includes an appeal under the Letters Patent. The Letters
Patent of the Lahore High Court, which applied, could, by
virtue of cl. 37 thereof, be amended or altered by the Legislatures. By enacting clause (2\ of s. 39 of the Arbitration
Act the Legislature has prohibited an appeal under the
Letters Patent against an order passed under s. 39(1).
The
provisions of s. 39 apply to appeals to superior courts as '\'ell
as to "intra-court appeals".
Madhavdas v. Vithalda.,, I L. R. (1952) Born. 570 and
Radha Krishna Murthy v. Ethirajulu, I.L.R. ( 1945) Mad. 564,
approved.
Hanuman Chamber of Commerce Ltd, Delhi v . .Jassa Ram
'\._~ Hira Nand, A.I.R. (1948) Lah. 64, Banwari Lal Ram Dev v.
The Board of Trustees Hindu College, I.L.R. ( 1948) E.P. 159
497
1961
September ~.
1961
Uni'.111 of India
..
},/ ohindra Supply
Company
SI.ah].
498
SUPREME OOURT REPORTS
[1962]
and M11lc/1anrl Keu-al Chand Daga v. Kis3an Das Griclhardass,
(1961) 74 L.W. 408 F.B., disapproved.
In considering whether s. 39(2) has taken away the
right of appeal under the Letters Patent the court must
interpret the \\'Ords of the statute \\'ithout any predisposition
towarrl!'i the state of the )a, .. · as it was before the enactment
of the Arbitration Act, 1940.
In interpreting a statute which
codifies the Ja\v it is not permissible to start "·ith the assumption that it \\·as not intended to alter the pre-existing la\\'.
Narrndra Nath Sircar v. Kom/abasini
Da~i, J..R. (1896)
23 I.A. 18, applied.
Under the Code of Civil Procedure of 1882 there was a
conflict of opinion amongst the High Courts on the question
whether an appeal lay under the Letters Patent from an
appellate order of a Single Judge in arbitration matters. The
Code of l 908 by enacting s. 4 and s. 104( I) preserved the
right of appeal under any other law for
the time
being.
The Arbitration Act, 1940 removed all the pro\'isions relating
to arbitration from the Code and made comprehensive pro.
visions in the Act. Though under the Code of 1908 an appeal
~
did lie under the Letters Patent from an order pa.,cd by a
Single Judge in exercise of appellate jurisdiction that was
because the po\\'Cr to hear appeals under a special la"" \Vas
expressly reserved bys. 4 of the Code. There is no provi>ion
in the Arbitration Act, 1940, corresponding to s. 4 of the Code
and there is nothing \\·hich prcsr.r\·es the jurisdiction of the
High Court under the Letters Patent. Accordingly. the Lctten
Patr.nt must he read subject to the pr

## Text

SUPREME COURT REPORTS
UNION OF INDIA
v.
MOHINDRA SUPPLY COMPANY
(K. N. WANOHOO, K. c. DAS GUPTA, J. c. SHAH
and RAGHUBAR DAYAL, JJ.)
Arbitration-Order of Subordinate .Judge refuoing to ut
a•ide award-Appeal to High Court-Single .Judge allowing
appeal-Letters Patent Appeal, whethEr maintainab/£-InterpreX
tation of codifying
statu!e.•-lndian Arbitration Act, 1940
(X of 1940) s. 39(2)-Letters Patent of Lahore High Court, cl.JO.
A dispute between the appellant and the respondent
arising out of a contract for the supply of fuel was referred to
arbitration. The arbitrators gave an award directing the
appellant to pay a certain sum of money to the respondent' and
filed the award in the court of the Subordinate Judge. The
ilppellant made an application for setting aside the award
but it was rejected.
A~ainst this order the appellant preferred
,
an appeal to the High Court under s. 39(1) of the Indian Arbitration Act, 1940, and a Single Judge allowed the appeal and
set aside the award. Thereupon the respondent filed a Letter.
Patent Appeal against the judgment
of the Single Judge.
This appeal was allowed, the judgment of the Single Judge
was set aside and the order of the Subordinate Judge was
restored. The appellant contended that the Letters Patent
Appeal was incompetent ass. 39(2) barred a second appeal
from an order passed in appeal under s. 39 ( 1).
'
Held, that an appeal against the appellate order of the
Single Judge was barred by s. 39(2) of the Arbitration Act.
The expression "second appeal" ins. 39(2) means a further
appeal from an order passed in appeal under s. 39(1) and
not an appeal under s. 100 of the Civil Procedure Code, and
includes an appeal under the Letters Patent. The Letters
Patent of the Lahore High Court, which applied, could, by
virtue of cl. 37 thereof, be amended or altered by the Legislatures. By enacting clause (2\ of s. 39 of the Arbitration
Act the Legislature has prohibited an appeal under the
Letters Patent against an order passed under s. 39(1).
The
provisions of s. 39 apply to appeals to superior courts as '\'ell
as to "intra-court appeals".
Madhavdas v. Vithalda.,, I L. R. (1952) Born. 570 and
Radha Krishna Murthy v. Ethirajulu, I.L.R. ( 1945) Mad. 564,
approved.
Hanuman Chamber of Commerce Ltd, Delhi v . .Jassa Ram
'\._~ Hira Nand, A.I.R. (1948) Lah. 64, Banwari Lal Ram Dev v.
The Board of Trustees Hindu College, I.L.R. ( 1948) E.P. 159
497
1961
September ~.
1961
Uni'.111 of India
..
},/ ohindra Supply
Company
SI.ah].
498
SUPREME OOURT REPORTS
[1962]
and M11lc/1anrl Keu-al Chand Daga v. Kis3an Das Griclhardass,
(1961) 74 L.W. 408 F.B., disapproved.
In considering whether s. 39(2) has taken away the
right of appeal under the Letters Patent the court must
interpret the \\'Ords of the statute \\'ithout any predisposition
towarrl!'i the state of the )a, .. · as it was before the enactment
of the Arbitration Act, 1940.
In interpreting a statute which
codifies the Ja\v it is not permissible to start "·ith the assumption that it \\·as not intended to alter the pre-existing la\\'.
Narrndra Nath Sircar v. Kom/abasini
Da~i, J..R. (1896)
23 I.A. 18, applied.
Under the Code of Civil Procedure of 1882 there was a
conflict of opinion amongst the High Courts on the question
whether an appeal lay under the Letters Patent from an
appellate order of a Single Judge in arbitration matters. The
Code of l 908 by enacting s. 4 and s. 104( I) preserved the
right of appeal under any other law for
the time
being.
The Arbitration Act, 1940 removed all the pro\'isions relating
to arbitration from the Code and made comprehensive pro.
visions in the Act. Though under the Code of 1908 an appeal
~
did lie under the Letters Patent from an order pa.,cd by a
Single Judge in exercise of appellate jurisdiction that was
because the po\\'Cr to hear appeals under a special la"" \Vas
expressly reserved bys. 4 of the Code. There is no provi>ion
in the Arbitration Act, 1940, corresponding to s. 4 of the Code
and there is nothing \\·hich prcsr.r\·es the jurisdiction of the
High Court under the Letters Patent. Accordingly. the Lctten
Patr.nt must he read subject to the provisions of s. 39 of the
Arbitration Act.
l!urrish Chuncler Cho1<·drg '"· Kali Sundari Jlebia, (1882)
L.R. 10 I.A. 4, referred to.
Crv1L APPEI.r.ATE ,JmnslllCTIO:-< : Civil Appeal
No. 112 of 1958.
'I
•·
Appeal from the judgment and decree dated
l\fay 25, 195-1, of the Punjab High Court
in
L.P.A. )fo. 8~ of I !.l48 .
r
.Vaunit Lal and T. M. Sen, for the appellant.
S. 'I'. Desai,
Clwtter
Behari ancl A. G.
Ratn(lparkhi, for the respondent.
1961.
September 5.
The Judgment of the
Court wa8 delivered by
SHArr, ,J.-A dispute arising under a
relating to the supply of solidified fuel
contract
between
..
-
-
-
3 S.C.R. SUPREME COURT REPORTS
499
Messrs.
Mohindra Supply Company-hereinafter
referred to as tho respondents-and the GovernorGeneral of India in Council was referred to arbitration of two arbitrators. On March 19, 1946, the
arbitrators made and published an award directing
the Governor-General to pay to the respondents
)'-
Rs. 4 7,250/- with interest at 3% from July 17, 1944,
till payment. This award was filed in the court of
the Subordinate Judge, First Class, Delhi.
The
Governor-General applied for an order setting aside
the award on certain grounds which for
the
purposes of this appeal are not material. The
Subordinate .Judge refused to set aside the award
on the gr\iunds set up and rejected the application.
Against the order refusing to set aside the award,
'
the Governor-General preforred to the Lahore High
Court an appeal which after the setting up of thfl
Dominions of India and Pakistan was transferred
to the Circuit Bench of the East Punjab High
Court at Delhi. Falshaw, J., whc heard the appeal
set nside the order, because in his "iew the dispute
could not be referred to arbitration under the
contract which gave rise to the dispute and "that
was sufficient to invalidate the award". Against
that order an appeal was preferred under cl.IO of
the Letters Patent of the High Court of Lahore,
which by the High Court (Punjab) Order, 1947
applied to the East Punjab High Court. Before
the
Appellate
Bench,
the Govemor-General
,;
contended that the appeal under the letters Patent
was prohibited by s. 39( 2)
of the Indian Arbitration Act.
The question whether the appeal was
maintainable was referred to a Full Bench of the
High Court. The Full Bench opined that an appeal
from the judgment of a Single Judge exercising
appellate powers did lie under cl. 10 of the Letters
P<Ltent,
notwithstanding the bar contained in
-l. s. 39(2) of the Arbitration Act. After the opinion of
the Full Bench was delivered, a Division Bench
considered the appeal on its merits and set aside
J961
Union of India
v.
M ohindra Supply
Company
Shah J.
f
19~1
Union of India
v.
N oliind<a Sutpl7
OomjJany
Shah J.
500
SUPREME COURT REPORTS
[1962)
the order of Falslrnw, J. The Union of India
appeals against the rlecision of the High Court.
In this appeal, we arc only concerned with
the question whether the appeal urnler cl. 10 of the
Letters Patent of the High Court against the onler
of Falshaw, .T., was maintainable. The proceedings
rcl.iting to arbitration are, since the enactment of
the Indian Arbitration Act X of l!H(l, govern1H] hy
the provisions of that Act. The Act is a consolidating anrl amcmling stritute. It repealed the Arbitrn·
tion Art of
18()(), Schedule
~ of the Code of Civil
Procedure and also chi. (a) to (f) of s. 104(1) of the
Corle of Civil Procedure which proYirled for appeals
from orders in arbitration proceedings. Thf Act set
up machinery for all contract1ml arbitrations and
its provisions, subject to certain exceptio1rn, apply
also to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and
as if that'. other enactment were an arbitration
agreement, except in so far as the Arhitrntion Act
is inconsistent with that. other enactment or with
any mies made thereunder. Section 39 of the Act,
which deals with appeals, provides:
"( 1) An appeal shall lie from the following
orders passed
under this Aet (and from
no
others) to the Court authorised by law to hear
appeals from origin:il rlecrces of the Court passin):
the order:
»ll order-
(i) superr:erling an arbitration;
(ii) on an award stat~cl in the fon·
of a sp<'cial case;
(iii) modifying
or
correcting
a .
\. -
•
-
a\\"<'\rc.l;
!"·
(iY) filing
or refusing to file ar •
arbitration agreement;
-
-
-
-
3 s.C.R.
SUPREME COURT REPORTS
5o1
(Y) 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 this section, but nothing in
this section sha 11 affect or take away any right to
appeal to the Supreme Court."
The two sub-sections of s. 39 are manifestly
part of a single legislative pattern. By sub-s. ( 1 ),
the right to appeal is conferred against the specified orders and against no other orders ; and from
an appellate order passed under sub-s. ( 1) no second
appeal (except an appeal to this Court) lies. On
the question whether the interdict, in sub-s.!(2)
operates against an appeal under the Letters Patent,
there has been a divergence of opinion amongst
the High Courts in India. The Bombay High
Court in Madhavdas v. Vithaldas (') held that there is
no further right of appeal under the Letters Patent
when a Single Judge of the High Court disposee
of an appeal undei- s. 39 ( 1) of the Arbitration Act.
The sRme view was expressed by the Madras High
Court in Radha Krishna Murthy v. Ethirajulu('). In
Ilanuma.n Chamber of Commerce Ltd., Delhi v. Jassa
Ram Ilira Na.nd (')and Banwari Lal Ram Dev v. The
Board of Trustees, Hindu College(') it was held that
a right to appeal under the Letters Patent against
an order passed in appeal under s. 39( 1) IS not
restricted bys. 39(2). In the view of the Lahore
and the East Punjab High Courts appeals prohibited by su b-s. (2) were second appeals, i.e., appeals ur der s.-100" of the Civil Procedure Code and
"Intra-court_:appeals" such as appeals under th11
(I) I.L.R. (1952) Born. 570.
(2) LL.R. (1945) Mad. 564.
(3) A.I.R. (1948) Lah. M.
(4) !.L.R. (1948) E.P. 159.
1961
Union of lndi•
v.
M ohindra Supply
Company
Shah J.
196;
Uffron of lndi1
v
M oliindra Supply
Compan_v
Shah J.
li0:2
SUPREME COURT REPORTS
(1962]
Letters Patent from an order of ~ Single Judge
to a Bench of the same Court were not prohibited. The Madras High Court in a recent judgment-.llulchand /{eu·al Chand Daya
\'.
J(issan
Das Gridhardass (') has overruled its earlier decii;ion in Radha Krishna :IIurthy's case and has hold
that s. 3!J doals only with appeals from orders
passed hy a court. to a superior court and not
with appeals "intra-court" and therefore s. 30(2)
does not operate to prohibit :m appeal uncler the
Lcttern Patent again~t the order of a Single ,Judge
exercising appellate jurisdiction in an arbitration matter.
Section
3!l(~) expressly prohibits a second
appeal from an order passed in appeal under
s. 30( I) except an appeal to this court. There is
clear
indication inherent in sub.s. (2) that the
expression "second appeal" does not mean an
appeal under s. JOO of the Code of Ci\·il procedure.
To the interdict of a "second appeal", there is an
exception in favour of an appeal to this Court;
but an appeal to this Court is not a second
appeal.
If the legislature inten<lecl by enacting
s. 39(2) nearly to prohibit
appeals under s. 100
of the Code of Civil Procedure, it was plainly u11neecssary to enact an express provision saving
appeals to this Court.
Again
an appeal under
s. 3!l( I) lies against an order superseding an awanl
or modifying or correcting an award, or filing or
refusing to file an arbitration agreement or staying or refusing to stay legal proceedings where
there is an arbitration agreement or setting aside
or refusing to set a.side an award or on an a.ward
stated in the form of a special case. These orders
are not decrees within the meaning of the Code of
Civil Procedure and have not the effect of decrees
under thc> Arbitration Act. Section I 00 of the Code
of Civil Procedure deals with appeals from appellate decrees and not with appeals from appellate
(I) r,1961)74L.W.«!BF,B,
•
-
.....
-
J
--
3 S.C.R.
SUPREME COURT REPORTS
503
-I orders. If by enacting s. 39(2)
appeals
from
appellate decrees were intended to be prohibited,
the provision
was plainly otiose; and unless
the
context or the circumstances compel the
Court will not be justified in ascribing to the
legislature an intention to enact a sterile clause.
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 s. 39(1) and not
an appeal under s. 100 of the Civil Procedure Code.
This view was expressed by Savdekar, J., in Madhavdass v. Vithaldas (1) and by Rajamannar, C. J., in
Mulchand Kewal Chand Daga v. Kissan Das Gridhardass (2 ) and we agree with the learned Judges that
tho adjective "imports a further appeal, that is,
' numerically second appeal".
The problem to which attention must then
be directed is whether the right to appeal under
the Lettcrn Patent is at all restricted by s. 39,
sub-ss.(l) and(2). Clause 10 of the Letters Patent of
the High Court, in so far as it is material, provides:
"And we do further ordain that an appeal shall lie to the said High Court ......•.....
...... from the judgment (not being a judgment passed in 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
said High Court and not being an order made
in the exercise of revisional jurisdiction ........ .
of one Judge of the High Court ......... ".
By this clause, a right to appeal except in the cases
specified, from one Judge of the High Court to a
Division Bench is expressly granted. But the
Letters. Patent are declared by cl. 37 subject to
"4 • the leg1slat1ve power of the Governor-General in
Council and also of the Governor-in-Council under
(l) J.L.R. [1952] Born. 570,
(2) (1961) 74 L.W. 408 F.B,
1961
Union of India
v.
M ohindra Supply
Compariy
Shah].
1961
l/nion of India
v.
M nhindra Supply
C"'71pany
Shn\ ].
SUPREME OOURT REPORTS
[I 962]
the Government of India Act, HH5 am! mav in all
respects be amended 01' altered in exercise of legislative authority.
Under s. 39(1), an appeal lies
from the orders specified in that sub·scction and
from
no others. The
legislature has plainly
expressed itself that the right of appeal against
orders passed uncler the' Arbitration Act may be
CXl'roised only in respect of certain orders. The
right to appeal against other orders is expressly
taken away. If by the express provision contained
in s.
3!l(l), a right to appeal from a Judgment
which may otherwise be a\'ailablo under the LC'tters
Patent is restricted, there is no ground for holding
that clause (:?) <loes not similarly reotrict the excercisc of appellate power granted by the letters
Patent. If for rea .. ~ons aforementioned the expression "second appeal" includes nn appeal under the
JAJttcrs Patent, it would be impossible tu hole!
that notwithstan<ling the express prohibition, an
appeal uncler the Lett.cm Patent from an order
1mssccl in appeal undor sub-s.(l) is compct<,nt.
The Punjab High Court in Banuwi I.al llc1m
!Jev \'. The Bourd of Trustees, llindu College (I) and
the Lahore High Court in Ilanuman Chambe" of
Commerce Ltd., Delhi \' . .fr1ssa Ram l/ira Nmul \'),
helcl that the appeals contemplated by s. 3!l are
appeals tu supPrior ccJUrts and not "intm·court
appeals" and therefore the right to appeal unckr
the Letters Patent was not rcstrictctl by rnb-~s. (I)
and (2). But a littlc_analysis of this argument is
likely to exhibit the somewhat startling consequences. If the appeal contemplated by s. 3!) (1)
is only an appeal to a superior court, orclcrs passccl
bv u subordinate court decisions whereof arc made
ai>pealable to the same court will not be app<>alable
at all under the Arbitration AC't,,
For instance,
under the Bombav Civil Courts
Ac:t,
certain
decisions of Assista;tt J\l(lges arc' maclc appcalable
to the District Courts. An Assistant Judge is a·
Judge of the District Court and under the Bombay
(I) I. L. R. (194ll) E. P. 159.
(21 A I. R. 11948) Lah. 64,
..
....
3 S.C,R. SUPREME COURT REPORTS
505
Civil Courts Act, appeals against his orders and
decrees in certain cases lie to the District Court.
If the argument that an appeal under cl. (1) of s.39
means an appeal to a superior court, be accepted,
an appeal from an order under s. 39 ( 1) by an
.A.ssistant Judge will not lie at all. There are
similar provisions in the Civil Courts Acts in the
other'.States as well.
The qualifying expression
"to the court authorised by law to hear appeals
from original decrees of the Court passing the
order" in s. 39 (1) does not import the concept
that the appellate court must be distinct and
separate from the court passing the order or the
decree. The legislature has not so enacted and
the context does not warrant such an interpretation. The clause merely indicates the forum of
appeal. If from the decision of a court hearing
a suit or proceeding an appeal will lie to a Judge
or more Judges of the same court, by virtue of
s. 39 ( l) the appeal will lie from the order passed
under the Arbitration Act, if the order is
appellable, to such Judge or Judges of that court.
The argument that the right to file an appeal to
the Supreme Court from orders in arbitration
proceedings would be seriously restricted
has
in our view no substance. If an order passed
in a proceeding on the original side of the High
Court is appealable under s. 39 (1 ), an appeal will
lie to a Division Bench of the High Court and from
the order passed by the Division Bench, an appeal,
by the express provision contained in sub-s. (2)
will lie subject to the restrictions contained in the
relevant articles · of the Constitution to the
Supreme Court. If the order is not one falling
within s. 39 ( 1 ), no appeal will evidently lie. It is
true that against an order passed in arbitration
proceeding, by a Division Bench of a High Court in
an appeal, an appeal to this Court as a matter of right
may lie, if the requirements of Art. 133 are fulfilled ;
but if the same case is heard by a Single Judge no
1'61
LTnion of India
v.
M ohindra Supply
Company
Shah J .
1161
Union of India
V.
M chindra Supply
Cwzrny
Shah).
.50!}
SUPREllfE COURT ItEPORTS
[l!Ju::!J
such appeal will lie. But the right to appeal is a
creature of statute; no litigant ha~ an inherent
right to app<'al against a decision of a court. The
anomaly relied upon uy the appellant occurs in
second appeals, and re\·ision applications as well.
If these proceedings ari! heard and disposed of by
Single Judges, there is no right of appeal to this
Court uut against decisions of Division Benches
the right to appeal may be exercised.
Hut it was urged that the interpretation of
s. :rn should not be divorced from the setting of
kgislativc history, and if regard be had to the
legislative history and the dictum of the Pri,•y
Council
in Hnrrish Clmnder Clw11:rlry
v. Kali
Sundari
Debia (') which has been universally
followed, in considering the extent of the right of
appeal under the Letters Patent, the Court would
not ue justified in restricting the right of appeal
which was exercisable till HJ40 by litigants against
decisions of single Judges of High Courts in arbitra·
tion matters from orders p'18sed in appeals. In
considerillg the argument whether the right of
appeal which was previously
exercisable by
litigants against decisions of single Judges of the
High Courts in appeals from orders passed in
arbitration proceedings was intended to be takon
away by s. 30 (2) of the Indian Arbitration Act,
the Court must proceed to interpret the words of
the statute without any predisposition towards tho
state of the Jaw
uefore the Arbitration Act
was enacted. The Arbitration
Act of 1!140 is a
consolidating and amending statute and is for
all purposes a co<ln relating to arbitration. In
dealin" with the interpretation of the Indian
Succcs~ion
Act, 18u5, the Privy
Council
111
(Il
(188~1 L. R. IO l.A.4, 17.
\
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)f
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3 S.C.R.
SUPREME COURT REPORTS
507
Narendra Nath Sircar v. Kamlabasini Dasi(') observed that a code must be construed according to the
natural meaning of the language used and not on
the presumption that it was intended to leave the
existing law unaltered. The Judicial Committee
approved of the observations of Lord Herschell in
Bank of l!Jngland v. V agliano Brothers('} to the
following effect :-
"l think the proper course is in the
first instance to examine the language of the
statute and to ask what is its natural meaning
uninfluenced by any considerations derived
from the previous state of the law, and not to
start with inquiring how the law previously
stood, and then, assuming that it was probably intended to leave it unaltered, to see if
the words of the enactment will bear an
interpretation in conformity with this view.
If a statute, intended to embody in a code a
particular branch of the law, is to be treated
in this fashion, it appears to me that its utility
will be almost entirely destroyed, and the
very object with which it was enacted will be
frustrated. The purpose of such a statute
surely was that on any point specifically dealt
with by it the law should be ascertained by
interpreting the language used instead of, as
before, by roaming over a vast number of
authorities in order to discover what the law
was, extracting it by a minute citical examit.
f th
.
d . .
,,
na 10n o
e pr10r ec1s10ns .................. .
The court in interpreting a statute must therefore
proceed without seeking to add words which are not
to be found in the statute, nor is it permissible in
interpreting a statute which codifies a branch of the
law to start with the assumption that it was not
intended to alter the pre-existing law; nor to add
words which are not to be found in the statute, or
(I) (1896) L. R. 23, I. A. 18.
(2) [1891] A.C. 107, 144-145,
1961
Union of India
v.
M ohindra Supply
Company
Shah].
1111
Union of lnJi4
v.
_lf ohtntlra Sup~("!
c.:.rnJl•r._.,
Shah].
cos
SDPRE.ME COURT REPORTS
[l!J62]
'for which authority is not found in t.hc statute". But
we do not proporn to dispose of the arg 1ment merely on these general conHiderations. In our view,
even the legislative history viewed in the light of
the dictum of the Prin• Council in
Hurrish
Chunder's case, do('S not" afford any adequate
justifieation for departing from the
plain and
apparent intemlmcnt of the statute.
Vn<lcr the code of Cfril Procedure of 18ii, a
right of a ppoal was conferred upon litigants against
certain orders by s. ;)88 and from no other such
orders. Clauses (s) and (t) dealt with a right to
appeal Jgainst an order under s. 514 superseding an
arbitration, and an or<ler un<lC'r s.518, modifying an
award. It wnS: enacted in the last paragraph., tlmt
the orders pasEed in appeals under the scdion shall
be final.
By paragraph
~ of s. 589, it
was
provided :
"When an appeal from any order is allowe1l by this chapter, it sh1dl lie to the Court
to which an appeal would lie from tho decree
in the suit in relation to which such order was
made ....... ••.
By s. 591 it was provided :
"Except as proYided in this Chapter, no
appeal shall liP from an order passed by any
Court in the cxercisto of its original or appellate jnrisdiction."
The Code of I Sii wa~ replacccl by the Coclc of I 882
but the provisions relating to appeals from orders
were re-enact<'<! in identical terms. Before the 1lcc18ion in HurriRh Chnn<lrr'R case, the view was held,
especiall~- hy the Bombay and the ~fadras High
Court.a, that under el.(15) of the I..et.tcr8 Patent of
the
High
Courts
of Bombay, Madras
and
Cal cut ta an appeal from
an order passed by
a single Judge of a High Court lay only under s. 588
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i
:l 1:1.U.R.
SUPREME COURT REPORTS
50!J
~ of the Code and not otherwise. In Sonba'i v. Ahmed·
bha'i Habibha'i (1) a Full Bench of the Bombay
High Court in construing the provisions of the
Letters Patent of the High Court in the light of the
provisions of s. 363 of the Civil Procedure Code·
held that under cl. 15 of the Letters Patent and
under the rules of the High Court, an appeal to the
High Court from an interlocutory order made by
one of the Judges lies only in those cases in which
a.n appeal is allowed under the Code of Civil Procedure and its amending Acts.
A similar view wae
expressed by the Madras High Court in Achaya v.
Ratrandu., (2). Bnt the Privy Council in Hu.rri~h
Chunder Chowdry v. Kali Simdari Debia (')in a very
terse observation expressed a different view, m
that case one Ka3siswari executed a will devising a
taluk in equal shares to her daughter Clnmdermoni
and her cfaughter-in-law Kali Soondari. After the
death of Kassiswari, the two devisees under the
will sued one Hurrish Chander for a decree for
possession of the taluk. The Subordinate Judge
decreed the suit and that decree was ultimately
a.ffirmed by the Privy Council in an appeal filed by
the daughters of Chundermoni, and the order of the
Queen-in-Council was transmitted
to the High
Court for execution. In the meanwhile, Chundermoni's moiety in the taluk was purchased by Hurrish
Chunder. Thereafter, Kali Sundari applied in the
original jurisdiction of the High Court at Calcutta
for execution of the order of the Queen-in-Council.
Pontifex, J., declined to execute the order, because
in his view it could not be executed by one only out
of the two original plaintiffs. Against that order,
an appeal was preferred under cl. 15 of the Letters
Patent of the High Court.
A Full Bench of the
High Court was unanimously of the view that the
"discretion" exercised by Pontifex, J., was erroneous
but in the view of Garth, C. J., the order passed by
Pontifex, J., was merely a ministerial order which he
t.l; (1872) 9 Born. H. C. Reports 398.
(2)
I.L.R. 9 Mad. 447~
(3) (1882) L.R. 10 I. A. 4, 17.
1961
Uni1111 o.f India
v.
M ohindra Supply
Company
Shah].
1961
Union of Illliid
v.
M olii•dra S~pg
Company
Shah J.
510
SUPREME COURT REPORTS
(1962]
had no jurisdiction to pass an<! the appeal was
incompetent. White and Romeshchunder Mitter, JJ.,
held that the order amounted to a "juclgmont"
and was appealablc under cl. 15 of the Letters Patent. Against tho order of the High Court, an
appeal was taken to the .Jiidicial Committee of tho
Pri\"V Council bv the defendant Hurrish Chunder _
The Judicial Committee approved of the majority
view of the High Court. In negativing the argument of Garth, C.J ., the Committee pointed out
that Pontifex, J., was not shown to have usurped
jurisdiction which did not belong to him, but even
if he had, that was a valid ground of appeal, and
that if a .Judge of the High Court made an order
under a misapprehension of the extent of his jurisdiction the High Court had the power to entertain
an appeal to set right such a misrarriage of j11stice.
The Committee then observed :
"It only remains to observe that thoir
Lordships do not think that R. 588 of Act X
of 1877, which has the effect of restricting
certain appeals, applies to ·such a case as this
where the appeal is from one of the ,Judges of
the Court to the full Court."
•
This judgment (in Hurrish Chundcr Chowdry's
case) gave rise to a serious conflict of opinion in the
High Courts in [ndia. The High Courts of Calcutta,
Bombay and Madras held, following the dictum of
the Privy Council, that an order not appcalablo
under s. 588 of the Civil Procedure Code may still
be appealable provided it amounted to a "judgment"
within the meaning of cl. I Ii of the Let tors Patent of
the respccti\·c Hii;(h Courte.-Clwpzlan v. Noidin
Kutti ('), S<1bhapathi Chelti v. Narayam1sirami Chetti{'),
'l'oolsee Money
Das see \.. Sudev·i Dl1ssee ('), and
Secretary of State v. Jehwigir (').
But the Allahabad High Court in Banno Bibi
v. ~Mehdi Hu.min (') expressed a contrary opinion.
It was observed by Sir John Eclgc, C. ,J., that if the
(iJ I.L.R. (1899) 22 Mad. 68.
(2) f.L.R. 119021 25 Mad. SSS,
') 1.J .. R. (JS99)26Cal.363.
141 [1902]4Bom. 342.
(S) 1.L.R. (1889) I I All. 375.
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3 S.C.R.
SUPREME COURT REPORTS
511
order was not appealable under s. 588 ands. 591
of the Code of Civil Procedure it could not bo
appealP.d against under the Letters Patent of the
High Court.
This view was affirmed by a F111!
Bench of the same court in Muhammad NaimDl-Lah Khan v. lhsan-Ul-Lah Khan ('J.
The legislature m this state of affairs intervened, and in the Code of 1908 incorporated s. 4
which by the first sub-section provided :
"In the absence of any specific provision
to the contrary, nothing in this Code shall be
deemed to
limit or otherwise affect any
5pecial or local law now in force or any
special jurisdiction or power conferred, or
itny special form of procedure prescribed,
by or under any other law for the time being
in force";
and enacted in s. 104( I) that an appeal shrtll lie
from the orders set out therein and save as otherwiee expressly provided, in the ]Jody of the Code
or by any law for the time being in force, from no
other orders.
The legislature also expressly provi·
ded that "no appeal shall lie from any order pa,ssed
in appeal under this section."
Section 105 was substantially in the rnme
terms its s. 591 of the earlier Code.
The intention of the legislature in enacting
sub·s. (1) of s. 104 is clear: the right to app9al
conferred by any other law for the time being in
force lS expressly preserved.
This intention lS
emphasised by s. 4 which provides that in the
absence of any specific provision to the contrary,
nothing in the Code is intended to limit or other·
wise affect any special jurisdiction or power conferred by or under any other law for the time being
in force. The right to appeal against judgments
(which did not amount to decrees) under the Letters
Patent, was therefore not aff0cted bys. 104 (1) of
the Code of Civil ProcedurA, 1908 ..
(l) 1.L.R. (1892) 14 All. 226.
Union (J'f India
v.
Mohindra Supply
Conparty
Sh'].
1/111
Union 1Jf lndi11
v.
M oMad,a Sof>;ly
Compan.'I'
Shah J.
512
SUPREME OOURT REPORTS
[1962]
Under the Code, as amended, the view has
consistently been taken that interlocutory judg·
ment.<l (i.e., decisions though not amounting to
decrees which affect thl' merits of the question&
between the parties hy determining some right or
liability) passed by single Judges of Chartered High
Courts were appealablc under the Letters Patent :
Ruldu Singh v. Smuml Singh('), P1m1masiran v.
Ramasami ('), V11man R'.ltji Kulkarni v. S11gesh
Vishnu Joshi's ('), and
Ham
Sarup
Y.
Kaniz
Ummebani (').
Prior to 1940 the law relating to contractual
arbitration (except in so far as it was <lea It with
by tho Arbitration Act of 18()()) was contained in
the Code of Civil Procedure and certain ordere
passed by courts in the course of arbitration procccdingB were made appealable under the Code of
1877 bv 1.588 and in the Code of 1908 bv s. 104. In
]() tO, ·,he legislature enacted Act X of I() IO,
repealing schedule 2 ands. 104 (I) els. (a) to (f) of
the Code of Civil Procedure l 008 nrnl the Arbitra·
tion Act of 18!!0. By s. :rn of the Act, a right. of
appeal was conferred upon litigants in arbitration
proceedings only from certain orders and from no
others and the right to file appeals from appellate
orders was expressly taken away by sub·s. 2 an<l
the clause in s. 10-i of tho Code of 1H08 which
preserved tho special jurisdiction nnrler any other
law was incorporated in s. :19.
ThP- section was
enacted in a form which was absolute and not.
ilU bject to any exceptions. It is true that under
the Co<le of l!l08, an appeal di<l lie under the
Letter~ PatPnt from an ordf'r passed hy a single
Ju<lge of a Chartered High Court in arbitration
proceedings even if the order was passed in exercise
of appellate jurisdiction, but that was so, because,
the power of the Court to hear nppc:~ls under a
special law for tho time being in operation was
expressly prescn·ed.
I~ (1922' 3 Lah. J88.
{2) I.LR. (19331 56 MaJ. 915.
1 l.L.R. (1940) Born. 426.
(4) I.LR. (1937) All. 386.
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3 S.C.R.
SUPREME COURT REPORTS
513
There is in the Arbitration Act no provision
8imilar to s. 4 of the Code of Civil Procedure which
preserves powers reserved to courts under special
statutes. There is also nothing in the expression
"authorised by law to hear appeals from original
decrees of the Court" contained in s. 39( 1) of the
Arbitration Act which by implication reserves th11
jurisdiction under the Letters Patent to entertain
an appeal against the order passed in arbitration
proceedings. Therefore, in so far as Letters Patent
deal with appeals against orders passed in arbitration proceedings, they must be read subject to ths
provisions of s. 39(1) and (2) of the Arbitration
Act.
Under the Code of 1G08, the right to appeal
• under the Letters Patent was saved both by s. 4
and the clause contained in s. 104(1), but by the
Arbitration Act of 1940, the jurisdiction of the
Court under any other law for the time being in
force is not saved; the right of appeal can therefore be exercised against orders in arbitration
proceedings only under s. 39, and no appeal (except an appeal to this Court) will lie from an appellate order.
There is no warrant for assuming that the
reservation clause in s. !04 of the Code of 1908 was
as contended by counsel for the respondents,
"superfluous" or that its "deletion from a. 39( 1)
has not made any substantial difference" : the
;:.
clause was enacted with a view to do away
with the
unsettled state of the law and the
cleavage
of opinion between
the Allahabad
High Court on the one hand and Calcutta, Bombay
and Madras High Courts on the other on the true
effect of s. 588 of the Code of Civil Procedure upon
the power conferred by the Letters Patent. If the
. legislature being cognizant of this difference of
~, opinion prior to the Code of 1908 and the unanimity of opinion which resulted after the amendment, chose not to include the reservation clause
1961
l!nion of lm/ia
·-
Mohindra SJ#ly
Company
Shah].
U11io11 of India
v.
Jtf 1J.indrc SIJ#/y
C""/ .. Y
J~d ].
514
SUPREME COURT REPORTS
(1962]
m the provisions relating to appeals in the Arbitration Act of l!l40, the conclusion is inevitable
that it was so done with a view to rcotrict the right
of appeal within the strict limits defined by e. 39
and to take away the right conforrcd by other
etatutes. 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 thllt it was not
intended to alter the law relating to appeals. The
words of the statut~ are plain and explicit and they
must bll given their full effect and must be interpreted in their natural meaning, uninfluenced by
any assumptions derived from the pr.,vious stato
of the law and without any assumption that the
legislature must have intended to leave the exieting
law unaltered.
Jn our view the legislature has
mado a cleliberat-0 departure from the law prevailing lwforc the enactment of Act X of 1940 by codifying the law relating to appeals in s. 39.
Jn that view of the case, the appeal rnust be
allowed.
No order as to costs in this court. The
order of the Di\·ision Bench of the High Court is
eet aaido and the order passed by the learned Single
Judge is restored. We may add that on the viow
taken hy ns as to the competency of the appeal
under cl. I 0 of the Letters Patent, we havo not
heard counsel on the merits of th1• appeal.
A ppml al/mud.
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