Judgment H.N. Seth, J. 1. (FOR self and FOR V. K. Mehrotra, J.) The State of Uttar Pradesh has come up in appeal against an order dated 25-4-1978 passed by the Addl. Civil Judge, Dehradun, whereby he allowed an application under Section 20 of the Arbitration Act, filed by the respondent, and directed that both the parties should intimate the name of two arbitrators, one to be nominated by each of them, and that the arbitrators so nominated should select an umpire within 40 days of the order. 2. THE plaintiff Hindustan Construction Company Ltd. filed an application under Sec. 20 of the Arbitration Act 1940 claiming that there was an arbitration clause in the contract agreement entered into between the parties, according to which the dispute between them had to be resolved by arbitration. It accordingly, prayed that the dispute between the parties be referred to arbitration in accordance with arbitration clause in the agreement. The application was contested by the defendant on a number of grounds. Ultimately, the trial court came to the conclusion that dispute between the parties should, in accordance with the arbitration clause in the agreement be referred to arbitration of two arbitrators, one to be appointed by each of the two parties. It accordingly by the order under appeal directed the parties to intimate the names of arbitrators, who were to select an Umpire within the time mentioned in the order. The order under appeal merely specifies that the dispute between the parties has to be resolved by arbitration and calls upon the parties to nominate their respective arbitrators. Actually, no order referring the dispute to the arbitrators nominated by the parties, has been made so far. Being aggrieved, the defendant has come up in appeal and contends that the dispute in this case cannot be referred to arbitration as claimed by the plaintiff. 3. LEARNED counsel appearing for the plaintiff-respondent raised a preliminary objection with regard to maintainability of the appeal at this stage. 4. SECTIONS 20 and 39 of the Indian Arbitration Act, 1940 have since been amended by U. P. Civil Laws Reforms and Amendment Act, 1976 and the amended provisions read thus :- "20. 3. LEARNED counsel appearing for the plaintiff-respondent raised a preliminary objection with regard to maintainability of the appeal at this stage. 4. SECTIONS 20 and 39 of the Indian Arbitration Act, 1940 have since been amended by U. P. Civil Laws Reforms and Amendment Act, 1976 and the amended provisions read thus :- "20. Application to the Court for making reference :- (1) Where any persons have entered into an agreement before the institution of any suit, with respect to the subject matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them, instead of proceeding under Chapter II, may apply to a Court having jurisdiction in the matter to which the agreement relates, that a reference be made according to agreement. (2) The application shall be in writing and shall be numbered and registered as a suit between one or more of the parties interested or claiming to be interested as plaintiff or plaintiffs and the remainder as defendant or defendants, if the application has been presented by all the parties or, if otherwise, between the applicant as the plaintiff and the other parties as defendants. (3) On such application being made, the Court shall direct notice thereof to be given to all parties to the agreement other than the applicants, requiring them to show cause within the time specified in the notice why reference in accordance with the agreement should not be made. (4) Where no sufficient case is shown, the Court shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise or where the parties cannot agree upon an arbitrator to an arbitrator appointed by the court. (5) Thereafter the arbitration shall proceed in accordance with, and shall be governed by, the other provisions of this Act so far as they can be made applicable. Explanation :-Where an arbitration agreement provides for reference to a person by name or designation, the fact that the arbitrator or umpire so named or designated is an employee of or is otherwise connected with one of the parties, shall not by itself be deemed to be a reason for not referring the matter to the arbitrator or the umpire so named or designated." (emphasis supplied) "39. Appealable orders : An appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order :- (i) ............... (ii) ............... (iii) ............... (iv) under Section 20 making or refusing to make a reference. (v) ............... (vi) ............... Provided that the provisions of this section shall not apply to any order passed by a Small Cause Court. (2) ............" A perusal of the amended Section 20 of the Act clearly shows that under sub-Section (4) thereof the Court is enjoined to make an order referring the dispute to arbitration either of the arbitrators appointed by the parties or where the parties are not able to agree, to an arbitrator appointed by it. Before making an order under Section 20 (4) of the Act, the Court must necessarily find out if the arbitrators have been named in the agreement and if not, it will have to ask the parties to nominate the arbitrators in accordance with the agreement and it is only after this has been done that an order under Section 20 (4) of the Act, referring the dispute to arbitrator can be made. In the circumstances, an order merely deciding that a dispute is to be referred to arbitrator does not amount to an order making a reference as contemplated by Sec. 20 (4). It is true that before making an order referring a dispute to the arbitrators appointed by the parties or to that nominated by the Court, the Court has to first resolve the controversy between the parties on the question as to whether the dispute can or cannot be referred to arbitration, and if it comes to the conclusion that it is to be so referred, it will have to ascertain the arbitrators to whom it can be referred and then make an order referring the dispute to the said arbitrators. An appeal under Section 39 can be filed only when the Court has deter mind the persons to whom the reference is to be made and has actually made an order referring the same to such persons. The section does not contemplate filing of an appeal at any earlier stage. An appeal under Section 39 can be filed only when the Court has deter mind the persons to whom the reference is to be made and has actually made an order referring the same to such persons. The section does not contemplate filing of an appeal at any earlier stage. After the order referring the dispute has been made, it certainly will be open to the party filing an appeal against that order to show that in the circumstances the dispute should not be referred to arbitration and that if, for doing this, it becomes necessary to question the correctness of reasoning contained in any earlier order which is not appealable. It will also be able to challenge the validity of the earlier order as well. As order dated 25-4-1978 which is under appeal does not contain any direction making a reference to named arbitrators, no appeal under Section 39 of the Act lies against that order and its validity cannot be questioned at this stage. As in our opinion, the appeal is not maintainable at this stage, it is dismissed accordingly. In the circumstances, we direct the parties to bear their own costs. Appeal dismissed.