JUDGMENT : S.C. Mohapatra, J. - This is an appeal u/s 39 (1) (v) of the Arbitration Act, 1940 (for short ?the Act?) against an order staying Tide Suit No. 4 of 1985 u/s 34 of the Act. 2. Alleging breach of the terms of a written agreement between the Plaintiff and the Defendant No. I, the latter claimed damages against the former and in view of the dispute it is suggested for appointment of an Arbitrator for entering into reference and to decide the dispute. On that the Plaintiff filed the suit for declaration that the proposed reference initiated by Defendant Nos. 1 and 2 by appointing Defendant No. 3 as Arbitrator and calling upon the Plaintiff to appoint Arbitrator as per terms of the agreement is illegal and unlawful. On appearance, Defendants took several adjournment to file written statement and had to be set ex parte. Thereafter, on 1st of July, 1986, they filed an application u/s 34 of the Act for stay of the suit and to vacate the order setting them ex parte. Both the applications were heard and were disposed of by the impugned order. 3. Appeal is a creature of the statute and u/s 30 (l) (v) of the Act an appeal having been provided against an order refusing to stay the suit u/s 34 of the Act the order vacating the earlier order setting the Defendants ex parte has become final and is not the subject-matter of the appeal. 4. The stage for moving the Court for stay of further proceeding of the suit u/s 34 of the Act is before taking any steps in the suit. It is clear from the language of Section 34 that a party after taking steps in the suit cannot take resort to the provision for stay of further proceeding in the suit. This is now the settled position in view of the decisions of the Supreme Court reported in The State of Uttar Pradesh and Anr. v. Janki Saran Kailash Chandra and Anr. and of this Court reported in S. S. Sahu v. Hariprasad Saha and Anr. The trial Court, therefore, committed error of law in exercise of the jurisdiction at a later stage, when the Defendants took steps in the proceeding by filing application for adjournment to enable them to file the written statement. v. Janki Saran Kailash Chandra and Anr. and of this Court reported in S. S. Sahu v. Hariprasad Saha and Anr. The trial Court, therefore, committed error of law in exercise of the jurisdiction at a later stage, when the Defendants took steps in the proceeding by filing application for adjournment to enable them to file the written statement. The order to that extent cannot be sustained which is set aside. 5. Mrs. Padhi has apprehension that by setting aside the order, the order vacating the one setting Defendants ex parte may be avoided. I have made it dear that appeal is a creature of the statute. In this appeal the correctness of the order vacating the order setting the Defendants ex parte cannot be questioned since it is to be confined only to the portion of the order which relates to one u/s 34 of the Act. 6. In the result, the appeal is allowed. There shall, however, be no order as to costs. Final Result : Allowed