9911796707
TMI Blog2003 (11) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... An application for special leave to appeal to the Apex Court filed by the petitioner has been allowed and the civil appeal is now pending before the Apex Court. 2. Under section 36 of the Act an arbitral award is executable as a decree. But it can be enforced only after the time for filing an application under section 34 has expired and no application is made or such application having been made has been rejected. An application for executing the award has been filed by the respondent before the District Judge. The petitioner objected to the execution on the ground that as the appeal of the petitioner before the Supreme Court against the orders rejecting his application under section 34 is pending, the refusal of the application under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute that an award can be executed as a decree in view of the provisions of section 36 of the Act. The only question for consideration in this case is whether the word refused used in section 36 of the Act means a final refusal after all the proceedings of appeal etc. upto the Supreme Court are over or a refusal by the District Judge is sufficient to make the award executable. If the Legislature intended that it is only after the application under section 34 has been rejected at the appellate stage would the award be enforceable, it could have used such words as finally refused in the section. As stated above, the first situation referred to in the section when an award becomes executable is where the limitation for filing an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to in section 36 for setting aside the award is the application filed under section 34. An interpretation that section 36 refers to the refusal of the application at the stage of the appeal is not possible without straining the language of section 36 and adding the word finally as qualifying refused . Such an interpretation also does not promote any purpose, which the Legislature may have had in mind. The purpose of arbitration is to provide a speedy remedy. If the award cannot be executed until it has successfully borne all challenges even up to the Apex Court, it cannot be conceived of as a speedy remedy. While the Legislature has used the word final in respect of an award in section 35, the finality being subject to an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original proceedings, reliance was placed by the petitioner s counsel upon certain decisions. In State of Gujarat v. Salimbhai Abdul Ghaffar Sheikh, it was held that an appeal is a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court. In Rachakonda Narayana v. Ponthala Parvathamma [2001] 8 SCC 173, it was held that an appeal is a continuation of the suit and the whole matter is at large. In Mithilesh Kumari v. Prem Behari Khare [1989] 2 SCC 95, it was held in the context of the pendency of an appeal before the Apex Court that the matter becomes sub judice again and the Apex Court has seisin of the whole case though for certain purposes, e.g., execution the decree was regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Customs v. Krishna Sales (P.) Ltd. AIR 1994 SC 1239, it was held that the mere filing of appeal does not operate as a stay of the order challenged. In V.M. Shah v. State of Maharashtra JT 1995 (6) SC 433, it was held that mere pendency of the appeal does not have the effect of suspending the operation of the decree of the trial court and the decree does not become inoperative. In India General Navigation Railway Co. Ltd. v. Their Workmen AIR 1960 SC 219, it was held in the context of an award under the Industrial Disputes Act which was under challenge that a mere application for special leave does not have the effect of staying the operation of sections 17 and 17A. That was a case where leave had not yet been granted but i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
