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Miscellaneous Appeal No. 76 of 1955, decided on 25th October 1956.

. S. 39‑Whether applies to order directing filing of foreign award.

Section 39 of the Arbitration Act, 1940, which provides for appeal from an order directing the filing of an award applies to an order directing a foreign award to be filed. There is nothing in the Arbitration (Protocol and Convention) Act (VI of 1937) which prohibits the application of the section to such order.

Dinkearai v. Yeshvanathrai 31 Bom. L R 1403 ref.

Nurul Arfin for Appellants.

Dingomal for Respondents.

‑In this case we have an application before us for stay of execution of a judgment following an order filing an award passed in favour of the plaintiff against the defendant in England. The order is made under the Arbitration (Protocol and Convention) Act of 1937.

Mr. Dingomal for the respondents has raised a preli minary point that no appeal lies and hence the application should be dismissed, in that our jurisdiction to stay execution is dependent upon the right of appeal. We think, however, that his contention is not correct.

The Arbitration Act X of 1940 was passed, as the long title and preamble state, to consolidate and amend the law relating to Arbitration. The Arbitration (Protocol and Convention) Act of 1937 was passed "to make certain further provisions respecting the law of Arbitration in British India" The immediate purpose was to give effect to the protocol and the convention which were set forth in the Schedules to the Act. Before Arbitration Act X of 1940 was passed, we had a provision in section 89. Civil P. C. that all references to arbitration and proceedings thereunder should be governed by provisions in the Second Schedule. Section 104, clause (f) provided for an order filing or refusing to file an award in an arbitration. Para. 21 of the Second Schedule provided that upon the judgment pronounced after an order directing the filing of an award, a decree should follow and no appeal should lie from this decree except in so far the decree is in excess of or not in accordance with the award. These provisions from the body of the Civil P. C., and also, the provisions of Schedule 11 were repealed when the Arbitration Act X of 1940 was enacted, and we find in the present Arbitration Act X of 1940 section 17 regarding appeal from a decree and section 39 regarding appeals from orders.

When we turn to the Arbitration (Protocol and Con vention) Act VI of 1937, we find section 6 stating that upon a judgment being pronounced a decree shall follow, and no appeal should lie from such decree except in so far as the decree is in excess of or not in accordance with the award. This is identical with the corresponding provision in section 17 of the Arbitration Act X of 1940. But we do not find any provision in the Arbitration (Protocol and Convention) Act regarding appeals from orders refusing to file or directing the filing of an award.

Mr. Nurul Arfin states that this power is derived from section 47 of the Arbitration Act X of 1940 which reads as follows :‑

"Subject to the provisions of section 46 and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder".

The provisions of section 46 are not material to this case. The meaning of "save in so far as is otherwise provided by any law for the time being in force" come to this that you have to see whether any other law has some provision contrary to that laid down in the Arbitration Act X of 1940 ; if so, that provision will prevail, but if not, the provisions of the Arbitration Act X of 1940 will apply.

We cannot see anything in the Arbitration (Protocol and Convention) Act which prohibits the application of section 39A of the Arbitration Act X of 1940 and we think that it applies, in particular the provision that an appeal lies against an order setting aside or refusing to set aside an award.

This construction of section 47, which is materially identical with the repealed section 89 of the Civil P, C, is supported by the judgment of Ragnekar, J. in Dinkearai v Yeshvanathrai (31. Bom. L R 1403). At page 1407 the learned Judge states

"The plain meaning of the section therefore is that if a case is governed by the Indian Arbitration Act, then the Second Schedule will not apply ; otherwise it does".

Mr. Nurul Arfin contends that stay of execution must be granted by the Court, since it would be an offence for him to pay any sum to the credit of the plaintiff. But more particularly we think we are prohibited by subsection (3) (b) of section 21 of the Foreign Exchange Act of 1949 which states, no step shall be taken for the purpose of enforcing any judgment or order for payment of any sum to which the said provisions apply, except as respects so much thereof as the Central Government, or the State Bank, as the case may be, permit to be paid". Section 5 has to be read in connection with subsection (3) of section 21. Section 5, so far as is material, prohibits, except in accordance with exemption granted by the State Bank, any person in, or residing in, Pakistan from making any payment to or for the credit of any person residing outside Pakistan, or placing any sum to the credit of any person resident outside Pakistan.

A faint attempt was made by Mr. Dingomal to persuade us that his client, a limited company, by the name of Messrs. Yangtse (London) Ltd., was not, despite its name, resident in the U. K. Its head office, it is admitted, is situated there. Mr. Dingomal has stated that he had applied to the State Bank for permission, but he had been refused permission, since an appeal was pending in this matter. He has asked for the expedital of the appeal, to which Mr. Nurul Arfin has no objection.

We, therefore, grant this application for stay of execution until such time as tile respondent has obtained the necessary permission under the Foreign Exchange Act of 1947. The main appeal should be expedited. The paper‑book to be ready by the 1st of December 1956. Date in Office. Costs not pressed for ; therefore, no order as to costs of this application.

K. B. A. Application allowed.

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