JUDGMENT : P.K. Mohanti, J. - These two civil revisions arise out of on order dated 31-1-1974 passed by the learned Subordinate Judge of Rourkela whereby two petitions filed by the opposite party u/s 41 of the Indian Arbitration Act for issue of a temporary injunction and for appointment of a receiver were allowed. 2. The Petitioner is a mine owner who has taken lease of 254.25 acres in Gonua Iron Mines in the district of Sundargarh. The opposite party is a raising contractor who entered into on agreement with the Petitioner to operate the mines at his own costs and to pay the Petitioner on overall profit of Rs. 1.50 per ton of metal raised. The agreement was duly executed and registered on 10.4.1969. It contained on arbitration clause in the following terms: That any dispute or difference arising out of this agreement shall be referred to on arbitration of two members one of whom shall be chose n by each of the party and in case of difference between, them the matter shall be referred to one umpire chosen by them and the awards so given shall be yield and binding on the parties and all the provisions of the Indian Arbitration Act, 1948 shall apply. The agreement was to remain in force till 30.4.1971. Disputes and differences having arisen regarding the matters mentioned in the agreement the Petitioner filed Title Suit No. 52 of 1970 on 16-11-1970 for issue of a permanent injunction restraining the opposite party from disturbing her in the operation of the mines on the allegation that she had repudiated the contract by another registered deed dated 15-5-1970 and had entered into possession of the mines. On a petition filed by the opposite party u/s 34 of the Indian Arbitration Act, the Court stayed the further proceedings of the suit and directed the parties to get their dispute decided by arbitration. On 8.1.972 the dispute was referred to the arbitration of Shri Ranjit Mohanty, Bar-at-law and Shri Raghunath Das, Advocate nominated by the Petitioner and opposite party respectively. While the arbitration proceedings were in progress, the Petitioner revoked the authority of Shri Ranjit Mohanty to act as on Arbitrator. She applied to the Court on 11-12-1972 for leave to revoke the authority of Shri Ranjit Mohanty and to nominate Shri M. Mohanty, Bar-at-laws on arbitrator. The application was rejected by the Court on 31-1-1973. While the arbitration proceedings were in progress, the Petitioner revoked the authority of Shri Ranjit Mohanty to act as on Arbitrator. She applied to the Court on 11-12-1972 for leave to revoke the authority of Shri Ranjit Mohanty and to nominate Shri M. Mohanty, Bar-at-laws on arbitrator. The application was rejected by the Court on 31-1-1973. On 25-1-1973 the Petitioner applied for withdrawal of Title Suit No. 52 of 1970 which was allowed on 31-1-1973. The order allowing withdrawal of the suit was upheld by this Court Vide Rasiklal Rathor v. Smt. Maitri Sukhla 1973 (2) C.W.R 1757. 3. Thereafter on 2-5-1973 the opposite party filed a petition u/s 41 of the Indian Arbitration Act, registered as Misc. Case No. 16 of 1973, for issue of a temporary injunction restraining the Petitioner from transporting any quantity of iron ore from the said mine and from collecting the price of iron are sold by her to the Mineral and Metal Trading Corporation, Noida, since the month of February, 1973 and directing the said Corporation to place the amount of price of the quantity of iron ores delivered and sold by the Petitioner since the month of February, 1973 at the disposal of the Court. On 14-8-1973 he filed another petition u/s 41 of the Indian Arbitration Act, registered as Misc. Case No. 32 of 1973, for appointment of a receiver for custody and sale of the raised are lying at the pit-head and for depositing the sale proceeds in Court until disposal of the arbitration proceeding. It was contended that the opposite party had spent all the money for raising the are from the mines and the Petitioner had unauthorisedly received a sum of Rs. 68, 000/- and odd from the M.M.T.C. as the sale proceeds of the iron ore raised and sold by the opposite party and that a quantity of 8500 metric tonnes of iron are were lying at the pit-head. It was alleged that on 10-4-1969 there was another unregistered agreement entered into between the parties on the terms that the opposite party would continue to remain in possession of the mines even after 30-4-1971 until the ores raised and stacked by him at the mines were sold and the accounts between the parties were finally settled. The Petitioner filed counter in both the Misc. The Petitioner filed counter in both the Misc. cases contending, inter alia, that under the terms of the registered deed of agreement dated 10-4-1969 the opposite party was to raise ores in the mines till 30-4-1971, but after the cancellation of the said agreement on 15-5-1970 he had no right to continue possession of the mine. She denied execution of the unregistered deed of agreement dated 10-4-1969 and contended that it was a forged and fabricated document. She also contended that the applications u/s 41 of the Indian Arbitration Act were not maintainable in law as the suit had been withdrawn and the arbitration proceeding had been brought to on end by efflux of time. 4. The learned Subordinate Judge allowed both the petitions prohibiting the M.M.T.C. from paying any amount of the sale proceeds of iron ores to the Petitioner until finalisation of the arbitration proceedings and directing appointment of a receiver to take charge of the ores lying at the pit-head. 5. The main contention raised by the Petitioner is that the powers u/s 41 read with the Second Schedule of the Arbitration Act could not be exercised by the Court since the arbitration proceeding had been brought to on end by efflux of time. 6. Section 41 of the Act runs as under: Section 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) the Court shall have, for the purpose of, and in relation to, arbitration proceedings, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court: Provided that nothing in Clause (b) shall be taken to prejudice any power which may be vested in all arbitrator or umpire for making orders with respect to any such matters. The Second Schedule to the Act which lays down the powers of the Court u/s 41 provides for the preservation, interim custody or sale of any goods which are the subject-matter of the reference. Item No. 4 of the Second Schedule provides for power to issue interim Injunctions or to appoint a receiver. 7. The Second Schedule to the Act which lays down the powers of the Court u/s 41 provides for the preservation, interim custody or sale of any goods which are the subject-matter of the reference. Item No. 4 of the Second Schedule provides for power to issue interim Injunctions or to appoint a receiver. 7. It is also urged by the Petitioner that in view of the provisions of Section 28 read with Clause 3 of the First Schedule of the Act, the arbitrators became functus officio as they failed to submit their award within the time prescribed. Section 28 which applies both to arbitration through the intervention of the Court or without it provides: Section 28 (1) The Court may, if it thinks fit, whether the time for making the a ward has expired or not and whether the award has been made or not, enlarge from time to time the time for making the award. (2) Any provision in on arbitration agreement whereby the arbitrators or umpire may, except with the consent of all the parties to the agreement, enlarge the time for making the a ward, shall be void and of no effect: Clause 3 of the First Schedule to the Arbitration Act provides: The arbitrators shall make their award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to arbitration agreement or within such extended time as the Court may allow. 8. The legal position has been clinched by the majority view of the Supreme Court in the Case of Hari Shankar Lal Vs. Shambhunath Prasad and Others. Their Lordships observed that after expiry of the period of four months the arbitrators become functus officio unless the period is extended by Court u/s 28 of the Act. Their Lordships again observed as follows: So till the time is extended on award' cannot be made, though, when extended, the award factually made may be treated as on award made within the time so extended. To put it differently, if time was not, extended by Court, the document described as on a ward would be treated as non est. In Bokaro and Ramgur Ltd. Vs. Dr. To put it differently, if time was not, extended by Court, the document described as on a ward would be treated as non est. In Bokaro and Ramgur Ltd. Vs. Dr. Prasun Kumar Banerjee a Full Bench of the Patna High Court observed that the term "non est" was used by the Supreme Court in the sense that even if the award may be factually made beyond the period of four months, until the time is extended, it remains non est and by legal fiction becomes on award made u/s 28 of the Act. It was also observed that in the same sense it was said that after the expiry of the period of four months the arbitrators become functus officio unless the period is extended by Court u/s 28 of the Act. 9. As indicated earlier, in a letter addressed to the arbitrators, the Petitioner intimated that she had revoked the authority of Shri Ranjit Mohanty, Bar-at-law and thereupon the arbitrators passed the following order: In view of letter dated 5-12-1972 of Mrs. Maitri Sukhla revoking the authority of her arbitrator, it is embarrassing on the part of the arbitrator to continue with the proceeding without deciding the validity of revocation. Mrs. Sukhla may nominate another arbitrator in place of Mr. Mohanty forth with latest by 6th December, 1972 with intimation to co. Arbitrator Shri Dash, so that the proceeding may expeditiously be disposed of. A copy of this order may be sent to Mrs. Sukhla in her Bhubaneswar address as indicated in the letter. The entire record of the proceeding be kept in the custody of Mr. Dash. Sd. R.N. Dash. Sd. R. Mohanty. This shows that Shri Ranjit Mohanty declined to proceed with the arbitration. Though the Court refused to grant leave to the Petitioner to revoke the authority of Shri Ranjit Mohanty, the arbitrators did not proceed with the reference. No notice was also served by either party requiring them to proceed with the reference. On 11-12-1972 the Petitioner applied for extension of time u/s 28 of the Act and the prayer was rejected by the Court on 31-1-1973. No further steps were taken for extension of time. The learned Subordinate Judge has observed: So, the arbitrators have got no right now to continue (with the arbitration, which amounts to saying that no arbitration, proceeding is now pending. No further steps were taken for extension of time. The learned Subordinate Judge has observed: So, the arbitrators have got no right now to continue (with the arbitration, which amounts to saying that no arbitration, proceeding is now pending. Admittedly, no party has filed any petition u/s 28 of the Arbitration Act of extension of time since November, 1972. It is found that since November, 1972 the arbitration proceeding has come to a stand still on the action of Mrs. Shukla, who revoked the appointment of Mr. R. Mohanty as her arbitrator. It is stated on behalf of the Petitioner that as Mrs. Shukla has not intimated to Mr. Mohanty to continue as arbitrator after her petition for removal of Mr. R. Mohanty from arbitration and approval of Mr. M. Mohanty appointed as her arbitrator was refused by the Court, Mr. Mohanty is not willing to sit and conduct the arbitration proceeding. Because of this conduct of Mrs. Shukla, the arbitration proceeding is bottle-necked and it has come to stand-still. This hurdle can be removed by -the Petitioner by taking steps u/s 8 of the Arbitration Act, as Mr. Shukla deliberately creating this hurdle. Admittedly, the Petitioner has not taken any step u/s 8 of the Arbitration Act to serve any notice on Mrs. Shukla and the arbitrators either to proceed with the arbitration as per their appointments or to file petition before the Court for appointment of a sole arbitrator. Considering all the above facts and circumstances in the light of the principles laid down in the aforesaid decisions, I am inclined to hold that the arbitration proceeding has become infructuous by efflux of time. Hence the powers u/s 41 of the Act could not be exercised when the arbitration proceeding had been brought to on end. 10. Mr. B.K. Pal, the learned Counsel for the opposite party submitted that the power u/s 41 of the Act can be exercised even if no arbitration proceeding is pending. He relied on a decision in the case of Chhedilal Hariniwas v. Brit-Over Limited 52 Cal. Weekly Notes 45, and invited my attention to the following observations made therein: Mr. Chaudhuri refers me to Section 41 of the Arbitration Act and contends that the Court cannot under that section make any order for interim -injunction unless there is on arbitration proceeding actually pending. Weekly Notes 45, and invited my attention to the following observations made therein: Mr. Chaudhuri refers me to Section 41 of the Arbitration Act and contends that the Court cannot under that section make any order for interim -injunction unless there is on arbitration proceeding actually pending. That section provides, inter alia that, subject to the provisions of the Act and of the rules made there under, the Court shall have, for the purpose of, and in relation to, arbitration proceedings the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose oft or in relation to, any proceedings before the Court. The fourth item in the Second Schedule comprises 'Interim injunction or the appointment of a receiver.' This power is conferred on the Court for the purpose of or in relation to arbitration proceedings. It is 4.52 cal. Weekly Notes 45 not in terms limited to 'pending arbitration proceedings' and I do not see why the word 'pending' should be added to the section. Further the application for injunction has been made in a suit which is pending and which has not yet been stayed and this Court has power, apart from Section 41 of the Indian Arbitration Act, to make on order for interim injunction in a pending suit under the CPC as well as in exercise of its inherent powers. I am, however, unable to hold that the above decision is on authority for the proposition that the powers u/s 41 of the Act can be exercised even when the arbitration proceeding has become infructuous and the arbitrators have become functus officio. 11. The next contention of the Petitioner is that the order of temporary injunction and appointment of receiver passed by the learned Subordinate Judge is outside the scope of his power u/s 41(b) read with the Second Schedule. The arbitration proceedings in the instant case were for determination of mutual claims of the parties arising out of the registered contract dated 10-4-1969 which was in force till 30-4.1971. Clause 12 of the registered agreement clearly provides that the opposite party would have no claim over the assets left within the mining area after 30-4-1971. The arbitration proceedings in the instant case were for determination of mutual claims of the parties arising out of the registered contract dated 10-4-1969 which was in force till 30-4.1971. Clause 12 of the registered agreement clearly provides that the opposite party would have no claim over the assets left within the mining area after 30-4-1971. The alleged unregistered contract of the same date relied upon the opposite party does not contain on arbitration clause and It was not the subject-matter of the arbitration proceeding. The learned Subordinate Judge could not, therefore, make on order prohibiting the Petitioner from collecting the price of the ores sold by her since February, 1973 and directing the M.M.T.C. from paying the price of the ores sold by the Petitioner since February, 1973. 12. It is next contended by the Petitioner that the facts and circumstances of the case do not justify issue of a temporary injunction or appointment of receiver. Granting of on interim relief like the temporary injunction and the appointment of receiver is a matter of discretion. In exercise of this discretion, the Court has to look to the balance of convenience. In the present case, the issue of on injunction will prevent the Petitioner from operating the mines. On the other hand, if the opposite party succeeds ultimately, he will be amply compensated by damages. Therefore, the balance of convenience will be better served if no injunction is wanted. There is no allegation of waste and damage of the property which is the subject-matter of dispute. In my opinion, this is not a fit case for issue of temporary injunction or for appointment of receiver. 13. In the result, both the civil revisions are allowed with costs. The orders of temporary injunction and appointment 01 receiver are set aside. Final Result : Allowed