G.D. Patil, J.

1. This civil revision application is preferred by the original defendant in M.J.C. No. 48 of 1988 questioning the correctness of the order dated 7-1-1991 revoking the earlier order dated 9-10-1990.

2. The applicant Company had awarded a contract of construction of buildings and magazines at Kelzar, District Wardha to the non-applicant Firm on 15-3-1983. There was a term of arbitration in the original contract. Owing to certain dispute at the time of final payment, the proceedings under section 8 of the Arbitration Act for appointment of Arbitrator was filed by the non-applicant Firm in the Court of the Civil Judge, Senior Division, Nagpur. The present applicant filed application for dismissal of the application under section 8 of the Arbitration Act as the dispute was already referred to the Arbitrator M/s. Pheroze Kudianwalla Consultants and Engineers (P) Ltd., and the Arbitrator had passed an award in a meeting dated 16th May, 1987. It appears that no say to the above application was filed by the non-applicant and acting on the averments made in the application and documents placed therewith, the Trial Court allowed the application and dismissed the proceedings by order dated 9-10-1990.

3. On the same day i.e. 9-10-1990 an application for revoking of the aforesaid order came to be filed by the non-applicant, on the ground that the order was passed through oversight. The applicant objected to the said application on the ground that an application for revocation was not maintainable once the matter was disposed of in its entirety. However, the Trial Court allowed the said application and restored the main application. It is against this order dated 7-1-1991 the present revision application is filed by the original defendant.

4. I have heard Mr. Samarth, the learned counsel for the applicant and Mr. Bhattad, the learned counsel for the non-applicant. The only grudge made by Mr. Samarth is that the impugned order is without jurisdiction and as such it is liable to be quashed and set aside. It is contended by Mr. Samarth that there was no specific provision in the Arbitration Act conferring a power of review on the Court exercising jurisdiction under section 8 of the Arbitration Act. In his submission, power to review is not an inherent power and unless it is conferred by law either specifically or by necessary implication the powers of review are not available to the Court. He placed reliance on Nainsingh vs. Koonwarjee and others, : AIR 1970 SC 997 [LQ/SC/1970/176] , and Patel Narshi Thakershi and others vs. Pradyumansinghji Arjunsinghji, : AIR 1970 SC 1273 [LQ/SC/1970/95] . There is no dispute about the ratio laid down by the Supreme Court. The question is, as to whether the Court dealing with the matter under section 8 of the Arbitration Act is empowered by a law to review its own order.

5. Mr. Samarth, the learned counsel for the applicant in support of his submission further relied on Food Corporation of India vs. Bibhutibhusan Patra and others, : AIR 1987 Ori 230 [LQ/OriHC/1986/330] , wherein it has been observed by the Court that where an order is passed on finding wrongly that the pre-conditions are satisfied, the same can be revised by the higher forum. It cannot, however, be reviewed in absence of a right to review in the Act. Therefore, the order not being a nullity, refusal to review the order cannot be said to be exercise of jurisdiction with material irregularity. In paragraph 5, the Court has held that

"Review is a creature of statute. It is a substantive right and is not procedural in nature. Although the Act provides for appeals and specifically bars a second appeal in section 39 no whisper has been made by the legislature for review. The application of the Code of Civil Procedure to the enquiries under the Act would not give a right of review without specific provision for the same. Where, however, the order is a nullity, the Court can recall the same which is not review of the order, but correction of its own wrong."

It would thus be seen that in the view of the learned Judge, the application of the Civil Procedure Code to the enquiries under the Arbitration Act would not give a right of review without specific provision for the same. It appears that in the view of the learned Judge though specific provision for appeal is available and since such a provision as regards review is not available in the Arbitration Act itself, the provision in relation to the review as contained in the Civil Procedure Code would not be available. With respect, it is difficult to accept the view so taken.

6. Mr. Bhattad, the learned counsel appearing for the non-applicant has invited my attention to the provisions of section 41 of the Arbitration Act. Section 41 of the Act, as far as relevant, reads as under:

"41. Subject to the provisions of this Act and of rules made thereunder

(a) the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court, and to all appeals under this Act, and

(b)......."

Mr. Bhattad contended that since the provisions of the Code of Civil Procedure have been made applicable to all the proceedings before the court under section 41 of the Arbitration Act, the powers of review contained in the Code of Civil Procedure would be very much available to the court exercising jurisdiction on the application under section 8 of the Arbitration Act. There is much substance in the contention as advanced by Mr. Bhattad, the learned counsel for non-applicant.

7. In the case of Hakam Singh vs. M/s. Gammon (India) Ltd., : AIR 1971 SC 740 [LQ/SC/1971/21] , Their Lordships of the Supreme Court have held that the Code of Civil Procedure in its entirety applies to the proceedings under the Arbitration Act. It has been further held that, the jurisdiction of the Courts under the Arbitration Act to entertain a proceeding for filing an award is governed by the provisions of the Code of Civil Procedure. Similar view is taken by the Supreme Court in the case of R.D. Gupta vs. The Union of India, 1971 13) SCC 817, and also in the case of K.V. George vs. The Secretary to Govt., Water and Power Department and another, : AIR 1990 SC 53 [LQ/SC/1989/496] , wherein it has been held that the provisions of the Civil Procedure Code are applicable to the proceedings under the Arbitration Act including the provisions and principles of constructive res judicata.

8. The question about the power of review in the proceedings before the Court under the Arbitration Act has been discussed in the case of State of Orissa and others vs. Dandasi Sahoo reported in : AIR 1982 Ori 239 [LQ/OriHC/1982/94] , wherein it was held that

"So, the omnibus nature of Clause (a) of section 41 of the Arbitration Act makes all the provisions of the Code of Civil Procedure including those of review comprised in section 114 and Order 47 applicable to the arbitration proceedings, subject of course, to the overriding proviso that the provisions of the Code are not in conflict with the provisions of the Act and the rules made thereunder. A plain reading of clause (a) of section 41 would indicate that the Legislature meant to apply all the provisions of the Code to the arbitration proceedings subject only to one proviso, namely, that the provision of the Code sought to be availed of by a party to an arbitration proceeding was not in conflict with any provision of the Act or the rules made thereunder"

9. In the case of The Executive Engineer vs. Thingom Iboyaima Singh, AIR 1970 Man 76, it is held that clause (a) of section 41 unlike section 141 of the Civil Procedure Code applies to all provisions of the Civil Procedure Code which are not in conflict with the Act or the Rules to arbitration proceedings and not merely the procedure prescribed by the Code. It was held that words "appeal is allowed by this Code" in clauses (a) and (b) of section 114 of Civil Procedure Code in its applicability to arbitration proceedings must be interpreted as permitting review against order passed in arbitration proceedings provided an appeal lies under the Act and no appeal has been preferred or no appeal is provided under the Act.

10. The Division Bench of the Patna High Court in the case of Bihar State Electricity Board vs. M/s. Khalsa Brothers, : AIR 1988 Pat 304, while deciding the aspect of maintainability of the cross -objection and the applicability of provisions of Order 41, Rule 22 of the Civil Procedure Code, referred to the following observations in National Telephone vs. Post Master General, 1913 AC 546, at page 552 :

"When a question is stated to be referred to an established court without more it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach and also that any general right of appeal from its decision likewise attaches".

11. On considering the provisions of sections 141, 114 of the Civil Procedure Code and those of Order 4 7 of the Civil Procedure Code and having regard to the fact that there is no provision in the Arbitration Act inconsistent of those which are contained in the Code of Civil Procedure in relation to the exercise of powers of review by the Court and having regard to the decisions of Their Lordships of the Supreme Court reported in (1) : AIR 1971 SC 740 [LQ/SC/1971/21] , (2) : 1971 (3) SCC 817 [LQ/SC/1970/69] and : AIR 1990 SC 53 [LQ/SC/1989/496] , it is apparent that the powers of review can very well be said to be specifically conferred on the court exercising jurisdiction in the proceedings under section 8 of the Arbitration Act. Even if, therefore, there is no independent provision in the Arbitration Act itself speaking regarding the powers of review of the Court in the proceedings under the Arbitration Act, by virtue of section 41 making applicable the entire provisions of the Code of Civil Procedure to all proceedings before the Court under the Arbitration Act, the powers of review as contained in the Civil Procedure Code have to be held as specifically conferred on the Court dealing with the proceedings under the Arbitration Act. It is in this view of the matter, the contention that the impugned order is without jurisdiction in absence of specific conferment of power of review on the court, has to be rejected. No other aspect is agitated.

12. In the result, the instant civil revision application is without any substance and as such it is dismissed with costs.