- (1.)A learned Division Bench of this Court noted a conflict of views in two Division Bench judgments of this Court, namely, Corporation of India v. Karnail Singh, 1987 1 AWC 10and Union of India v. Mohamad Usman, 1965 AIR(All) 269 (DB). In Karnail Singh (supra), the Division Bench has taken a view that an appeal under Section 39 (1) (iv) of the Indian Arbitration Act, 1940 (hereinafter referred to as the 'Act') can only be filed after the Court has appointed the person to whom the reference is to be made and has actually made an order referring the dispute to such person, and not earlier. Whereas, another Division Bench in Mohamad Usman (supra), had taken a view that when the Plaintiff's application under Section 20 of the Act is allowed, then such an order is clearly an order directing filing of the arbitration agreement and, thus, it is covered under Section 39 (1) (iv) of the Act and, as such, the appeal is competent. The learned Division Bench, therefore, to resolve the controversy, by order dated 10th April, 2001 referred the following question for determination by a larger Bench, which reads as under:
Whether in the facts and circumstances of the case, this Appeal is maintainable.

(2.)The undisputed facts of the case are that the learned Civil Judge (Senior Division), Bijnor, by order dated 27.7.2000 accepted the application of the Respondent herein filed under Section 20 of the Act and directed the parties to disclose the name of an Arbitrator so that the dispute can be referred to the said Arbitrator. Thereafter, by order dated 6.9.2000, the learned Civil Judge appointed Shri R.A. Rajwanshi, Chartered Engineer as the sole Arbitrator. An appeal was preferred by the Appellants on 3.11.2000, challenging the order dated 27.7.2000. Admittedly, the order dated 6.9.2000 was not the subject matter of challenge in the appeal.
(3.)At the hearing of this appeal, on behalf of the Appellants, learned Counsel submits that the view taken in Mohamad Usman (supra) would be the correct view. It is submitted, considering the language and purport of Section 20 read with Section 39 of the Act, as amended by the State of U. P., the first aspect which the Court has to consider is as to whether there is dispute or difference between the parties which can be referred to an Arbitrator. The second aspect which the Court has to consider is to nominate the Arbitrator to resolve the dispute if the Court arrives at the conclusion that there is an arbitral dispute. So far as the first part is concerned, it is submitted that it is a judicial determination and, as regards the second part, it is merely a ministerial act and, therefore, it was open to the Appellants herein to file an appeal under Section 39 of the Act against the order dated 27.7.2000.
On the other hand, on behalf of the Respondents, learned Counsel submits that from a proper reading of Section 20 of the Act, it would be clear that an appeal can be filed only after the Arbitrator is appointed and not before, and to that extent, the view taken by the Division Bench in the case of Karnail Singh (supra) would be the correct view.