TMI Blog2015 (10) TMI 2839X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise provided in the Civil Procedure Code and exercisable in the proceeding for execution of a decree, to examine the legality and validity of the award, is therefore held to be not tenable. A new avenue dehors the provisions of Act, 1996 to challenge the award cannot be permitted at the stage of its enforcement before the civil court in view of the express exclusion of judicial intervention under general law procedure as envisaged in Section 5 of the Act, 1996. This Court therefore, comes to the conclusion that the provisions of Section 47 or Order 21 Rule 97 to 101 C.P.C. have no application to a proceeding under Section 36 of the Act, 1996 instituted for enforcement of an arbitral award. The learned court below has correctly appreciated the law in this regard and has committed no error in declining the prayer of the petitioner. The prayer to annul the award raised at the stage of its enforcement under Section 36 of the Act, 1996 under the provisions of Civil Procedure Code cannot be entertained by the court, this Court refrains from proceeding to express opinion on this controversy - the present writ application under Article 227 of the Constitution of India is dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with law and pass appropriate orders on consideration of the submissions made therein and in the meantime issue an appropriate direction restraining the learned court below from delivering possession of the trust properties which is subject matter of the award in Execution Case No. 41 of 2011 which is pending under Section 36 of the Arbitration Act. (c) Any other writ/writs for granting any other relief/reliefs as your lordship may deem fit in proper in the facts and circumstances of the case. 5. It is now well settled that a writ petition under Article 226 of the Constitution of India is a remedy in public law mainly against a state or its instrumentalities or the government and governmental agencies. As a corollary thereof, all the respondents in a writ petition cannot be private persons. From the averments in the writ application and the reliefs sought therein it is transparent that the primal issue pertains to a dispute relating to title and possession over immovable property and all the respondents are private persons not discharging any public duty. On behalf of the petitioner, during the course of submission, it could not be shown that the averments made in the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.T.A. took recourse to Section 34 of the Arbitration and Conciliation Act 1996 (hereinafter for brevity referred to as 'Act 1996') by filing application for setting aside the above said arbitral award. The Misc. Case No. 20 of 2007, instituted thereupon, however, was dismissed after contest by order dated 07.09.2011. The respondent No. 1 A.B.M. developers thereafter has filed the Execution Case No. 41 of 2011 before the Sub Judge-1 praying for enforcement of the award as envisaged under Section 36 of the Act 1996. 9. The present petitioner along with the two persons namely Rev. Moses Victor Thomas and Mani Nath Browne filed a petition under Section 47 C.P.C. in the above Execution Case No. 41 of 2011 and the Misc. Case No. 19 of 2012 was instituted thereupon. In the said petition, after tracing the history of the ownership of the property in question which has been the subject matter of the development agreement between the B.C.T.A. and respondent No. 1 and affirmed by the award, it was mainly alleged that the B.C.T.A. had no power to sell, lease and alienate the said property in any manner including by way of development agreement. It was further alleged that the B.C.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to several decisions including the decision in the case of A.V. Pappaiya Shastri v. Government of A.P. 2007 (2) P.L.J.R. S.C. 201 laying down the principle that fraud avoids all solemn acts, and a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law and can be questioned on this basis even in a collateral proceedings. Mr. Choubey has also pointed out that the non Baptists, after sneaking into the management of the company (B.C.T.A.), have been doing acts of plunder of the properties of the B.M.S., and has made particular reference to the orders passed by the Apex Court accepting the report of Justice R.N. Datta and issuing directions on that basis, the injunction order passed by the Delhi High Court with regard to the properties of the Baptist including the property in question and also to the directions issued by this Court in C.W.J.C. No. 3048 of 2006. The learned senior counsel has also emphasized that the power of this Court to pass order in the interest of justice is not restricted by the technicalities of law and in view of the act of patent fraud apparent from the materials on record, the interfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no error of jurisdiction, illegality or material irregularity committed by the learned court below in rejecting the objection raised by the petitioner in the execution case. 13. The learned counsel for the respondent No. 2 B.C.T.A. has also contested the claim and relief sought for by the petitioner by questioning the right, title and interest of the petitioner in the property in question. By and large the submission on behalf of the respondent No. 2 B.C.T.A. has followed the line adopted on behalf of the respondent No. 1. 14. It is manifest from the pleadings and submissions on behalf of the parties that the respondent No. 2 B.C.T.A. has executed a registered deed of development agreement dated 18.10.1995 for the land in question in favour of the respondent No. 1. The dispute arose between the respondent No. 1 and respondent No. 2 after the revocation of the development agreement by the respondent No. 2, and as the agreement contained an arbitration clause, a Request Case No. 22 of 2002 was filed by the respondent No. 1 under Section 11 of the Act 1996 before this Court. It is also apparent from the averments made in the counter affidavit and Annexure R/10 thereto that Sm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the proceeding under Section 36 of the Act, 1996 for enforcement of the award is proprio vigore a proceeding under the Code of Civil Procedure so as to attract the general law procedure including the provisions under Section 47 or under Order 21 Rule 97 to 101 C.P.C. 16. Before coming into force of the Act, 1996, the law relating to domestic arbitration was contained in the Arbitration Act, 1940. Section 14 of this Act provided for making of award and filing the said award in court and Section 17 provided the power of the court either to set aside the award or to pronounce judgment according to award and after the judgment so pronounced a decree was to follow. Section 41 of the said Act dealt with the procedure and power of the court and made the provisions of Civil Procedure Code to be applicable to all proceedings before the court and to all appeals under the said Act. By the said Act the provisions contained in Section (a) to (f) of section 104 of the Civil Procedure Code, dealing with arbitration proceeding, were also deleted. The present Act 1996 has repealed and replaced the Arbitration Act, 1940 and Section 5 of this Act, 1996 has clearly barred judicial intervention e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x x x x x x x x x x x x x x x x x x x x x x x x x x x (iii) x x x x x x x x x x x x x x x x x x x x x x x x x x x (iv) An arbitration award is neither a decree nor an Order for payment within the meaning of Section 9(2). The expression decree in the Court Fees Act, 1870 is liable to be construed with reference to its definition in the CPC and hold that there are essential conditions for a decree : (a) that the adjudication must be given in a suit. (b) That the suit must start with a plaint and culminate in a decree, and (c) That the adjudication must be formal and final and must be given by a civil or revenue court. An award does not satisfy any of the requirements of a decree. It is not rendered in a suit nor is an arbitral proceeding commenced by the institution of a plaint. (v) A legal fiction ought not to be extended beyond its legitimate field. As such, an award rendered under the provisions of the Arbitration Act, 1996 cannot be construed to be a decree for the purpose of Section 9(2) of the Insolvency Act. (vi) x x x x x x x x x x x x x x x x x x x x x x x x x x x. (vii) It is a well established rule that a provision must be construed in a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only for the purpose of enforcement, is clearly excluded. The main submission on behalf of the petitioner that the civil court, at the stage of enforcement of the award, can invoke its jurisdiction, inherent or otherwise provided in the Civil Procedure Code and exercisable in the proceeding for execution of a decree, to examine the legality and validity of the award, is therefore held to be not tenable. A new avenue dehors the provisions of Act, 1996 to challenge the award cannot be permitted at the stage of its enforcement before the civil court in view of the express exclusion of judicial intervention under general law procedure as envisaged in Section 5 of the Act, 1996. This Court therefore, comes to the conclusion that the provisions of Section 47 or Order 21 Rule 97 to 101 C.P.C. have no application to a proceeding under Section 36 of the Act, 1996 instituted for enforcement of an arbitral award. The learned court below has correctly appreciated the law in this regard and has committed no error in declining the prayer of the petitioner and dismissing the Miscellaneous Case No. 19/2012. 20. The learned senior counsel for the parties, have argued at length on the legality a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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