Report No. 76
5.23. Conflict of views and its solution.-
There is a conflict of views on the point as to whether, where a court passes a decree in terms of the award, an appeal would be maintainable on the ground that there was no valid reference to arbitration. It is not possible to reconcile the two conflicting views held in the matter. One view is that the appeal is maintainable.1
The other view is that the appeal is not maintainable.2-5
To set this controversy at rest, we are recommending amendment in section 30 of the Act. As a result of that amendment, an appeal would be maintainable under section 39(1)(vi) against an order which also disposes of the objection that the award is invalid because there was no valid reference to arbitration. Such objection, according to the amendment suggested by us6, would fall within the ambit of section 30.
1. Durga Charan v. Ganga Dhar, AIR 1931 Cal 109.
2. Golnur Bibi v. Sheikh Abdus Samad, AIR 1931 Cal 211,
3. (a) Mohammad v. Valli, AIR 1924 Born 324 (Pratt and Fawcett, JJ.). (b) Batcha Sahib v. Abdul Gunny, AIR 1914 Mad 675,
4. The case law on the subject is collected in U. Seth Win v. Central Plumbring Co., AIR 1935 Rang 94 and in Golnur Bibi v. Sheikg Abdus Samad, AIR 1931 Cal 211.
5. See discussion in Saha & Co. v. Ishar Singh, AIR 1956 Cal 321, p. 323, para. 24 (Chakravarti, C.J.), p. 33, para. 43 (S.R. Das Gupta, J.), p. 342, para. 86 (P.B. Mukharji, J.) and p. 347, para. 130 (Bachawat, J.).
5.24. Section 18.-
This takes us to section 18, which deals with power of the court to pass certain interim orders. The section needs no change.
5.25. Section 19.-
Under section 19, where an award has become void under sub-section (3) of section 16 or has been set aside, the court may, by order, supersede the reference and shall thereupon order that the arbitration agreement shall cease to have effect with respect to the difference referred. The section needs no change.