IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 CRP.No. 312 of 2010() --------------------- OPARB.35/1997 of SUB COURT,KOLLAM .................... APPELLANT/ PETITIONER: ------------------------------- BINOY KURUVILLA, CONTRACTER, KALLISSERIL, CHINGAVANAM P.O., KOTTAYAM. BY ADV. SRI.P.K.BALAKRISHNAN NAIR RESPONDENTS/RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, IRRIGATION DEPARTMENT, THIRUVANANTHAPURAM. 2. SUPERINTENDING ENGINEER, K.I.P.R.B.C. CIRCLE, KOLLAM. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.312 of 2010 --------------------------------------- Dated this 21st day of June, 2010 ORDER On the disputed issue an award was passed by the arbitrator in favour of petitioner and in accordance with the provisions of the Arbitration Act 1940, petitioner filed the award in the court of learned Sub Judge and requested that it may be made the rule of law. That application was opposed by the respondent. It happened on 25-01-2007 the day on which the application was posted for production of documents by the respondents that petitioner and counsel were absent and hence the application was dismissed. Without loosing time petitioner filed I.A.No.700 of 2007 for restoration of the petition. Learned Sub Jude was not impressed by the application stated that name of the train which petitioner and counsel missed is not mentioned in the affidavit and dismissed the application. That is under challenge in this court under Section 115 of the Code of Civil Procedure (for short, “the Code”). 2. When this matter came up for hearing I heard learned counsel for petitioner and the learned Government Pleader on the maintainability of the revision since order 43 Rule 1(c) of the Code provided for restoration of the suit. Section 41 of the Act states C.R.P.No.312 of 2010 : 2 : that subject to the provisions of that Act and of rules made thereunder the provisions of the Code shall apply to all proceedings before the court, and to all appeals , under this Act.” Section 39 of the Act deals with appealable orders and sub Section (1) enumerates the orders passed under the Act which are appealable. Under sub section (1), “an appeal shall lie from the following order and from no other order to the court authorised by law to hear appeals from original decrees of the court passing the orders”. In the commentary to Section 39 in S.D.Singh's Law of Arbitration at 10th Edition at page 795 it is stated that the words “under the Act” and “and from no others” however, refer to the express provisions of the Act, and have no reference to appeals which the Code provides from orders passed under the provision of that Act and an appeal would, therefore, lie against an order dismissing an application for restoration of the application made under the Act. Dealing with the Kerala Land Acquisition Act a Division Bench of this court in Trichur Range Gold Workers' Union Vs. State of Kerala (1974 (2) ILR Kerala 280) has held referring to Sections 59 and 60 of the Kerala Land Acquisition Act that when an application for reference is dismissed for default under Order 9 Rule 9 of the Code, application for its restoration is maintainable and if that application is dismissed, an appeal under C.R.P.No.312 of 2010 : 3 : Order 43 Rule 1(c) of the Code is maintainable. Section 59 of the Kerala Act reads : “Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure 1908, shall apply to all proceedings before the court under this Act” 3. Under Section 41 of the Act which I have extracted above, provisions of the Code subject to the provisions of the Act and rules made therein shall apply to all proceedings before the court. I have not been shown any provision in the Act which is inconsistent with the power of civil court to entertain the appeal under Order 43 Rule 1(c) of the Code against rejection of an application for restoration of the arbitration proceeding dismissed for default. Section 41 of the Code also makes the position clear. The provisions of the Code relating to suits are made applicable to applications also. Hence the impugned order is appealable. It follows that proper procedure as against impugned order is to prefer an appeal to the court to which appeals from the decree that may be passed by the court concerned, under Order 43 Rule 1(c) of the Code. In the circumstances without prejudice to the right of C.R.P.No.312 of 2010 : 4 : petitioner to move such appeal this revision petition is closed. Copy of the impugned order produced by the petitioner shall be returned to the learned counsel for petitioner on application. (THOMAS P JOSEPH, JUDGE) Sbna/-