1

R
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH

DATED THIS THE 22ND DAY OF MARCH, 2024

BEFORE

THE HON’BLE MR. JUSTICE C.M. POONACHA

C.R.P. No.100067 OF 2022

BETWEEN

1. M/S BELLARY NIRMITHI KENDRA

BY ITS CHAIRMAN
THE DEPUTY COMMISSIONER,
BALLARI
REPRESENTED BY ITS PROJECT DIRECTOR
MR. MOHANA KRISHNA
AGED ABOUT 34 YEARS,
R/O. NALLACHERU
NEAR VALMIKI BHAVAN
BALLARI-583101
...PETITIONER
(BY SRI PRASHANT F GOUDAR, ADVOCATE)

AND

1 . M/S CAPITAL METAL INDUSTRIES

REPRESENTED BY ITS PROPRIETER
SRI. CHANDMAL P JAIN
28/30 DR. WILSON STREET
5A GROUND FLOOR,
V.P.ROAD, MUMBAI-400004
…RESPONDENT
(BY SMT V VIDYA, ADVOCATE)

THIS CRP IS FILED UNDER SEC.115 OF CPC, 1908, PRAYING TO

SET ASIDE THE ORDER DATED 19.03.2022 REJECTING THE
APPLICATION FILED UNDER SECTION 47 OF CPC 1908 IN
EX.C.NO.376/2018 PASSED BY THE HONBLE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, AT BALLARI VIDE ANNEXURE-A AND THEREBY
DISMISSING THE EXECUTION PETITION FILED BY THE RESPONDENT
BEARING EX.C.NO.376/2018 AND ETC.
 2

THIS PETITION HAVING BEEN HEARD AND RESERVED ON

16.02.2024 COMING ON FOR 'PRONOUNCEMENT OF ORDERS' THIS
DAY, THE COURT MADE THE FOLLOWING:-

ORDER

The present Civil Revision Petition is filed under Section 115

of the Code of Civil Procedure, 19081 challenging the order dated

19.03.2022 passed in Execution Case No.376/2015 by the

Principal District and Sessions Judge, Bellary2 wherein an

application filed by the Petitioner under Section 47 of the CPC

was dismissed.

2. The relevant facts necessary for consideration of the

present petition are that the Petitioner and the Respondent

entered into an Agreement dated 26.6.20133 for supply of Kapital

Era Bus Shelters at Ballari. Alleging various violations in

compliance of the terms of the said Agreement, the Respondent

filed a petition in Reference Petition No.69/2014 before the Micro

and Small Enterprises Facilitation Council4 for recovery of a sum of

`34,48,445/-, consequent to which, a notice of Conciliation under

1
Hereinafter referred to as ‘CPC’
2
Hereinafter referred to as ‘Executing Court’
3
Herein after referred as the ‘said Agreement’.
4
Hereinafter referred to as ‘Council’
 3

Section 18 r/w 17 of the Micro, Small and Medium Enterprises

Development Act, 20065 was issued to the Petitioner. In

response, the Petitioner herein issued a reply denying the

jurisdiction of the Council to adjudicate the dispute by placing

reliance on clauses 8 and 9 of the Agreement.

3. Vide order/award dated 17.11.2017, passed under

Section 18(3) of the MSMED Act, the Reference Petition

No.69/2014 was allowed and it was ordered that the Petitioner

herein who was arrayed as Respondent in proceedings before the

Council was required to pay `30,73,037/- along with interest.

Being aggrieved, the Petitioner preferred Writ Petition

No.4523/2018 before the High Court of Judicature at Bombay

challenging the said award dated 17.11.2017. Vide order dated

17.09.2019, the said writ petition was disposed of leaving it open

for the Petitioner to avail the remedy under Section 34 of the

Arbitration and Conciliation Act, 19966. The Petitioner preferred a

petition under Section 34 of the Act of 1996 in Arbitration Petition

No.1452/2019 before the High Court of Judicature, Bombay. Along

with the said petition, I.A.1/2020 was filed for stay. Vide order

5
Hereinafter referred to as ‘MSMED Act’
6
Hereinafter referred to as Act of 1996
 4

dated 21.1.2020, the interim application as well as the petition

were dismissed.

4. In the interregnum, Execution Case No.376/2018 was

filed by the Decree Holder before the Executing Court wherein, the

Petitioner filed an application under Section 47 of the CPC for

dismissal of the Execution Petition on the ground that the award

dated 17.11.2017 passed by the Council is a nullity, non est and

passed without jurisdiction. The Respondent filed objections to the

said application.

5. Being aggrieved by the order dated 21.1.2020,

dismissing the Arbitration Petition No.1452/2019, the Petitioner

preferred Appeal No.91/2020 before the Division Bench of the

High Court of Judicature, Bombay under Section 37 of the Act of

1996. By order dated 09.04.2021, the said appeal was dismissed.

6. The Executing Court vide its order dated 19.03.2022,

dismissed the application filed by the Petitioner under Section 47

of the CPC. Being aggrieved, the present petition is filed.

7. Learned counsel for the Petitioner assailing the order

passed by the Executing Court contends that:

 5

i) There was inherent lack of subject matter

jurisdiction for the Council to entertain the
petition filed by the Respondent since the
Respondent was not registered under the MSMED
Act of 2006 as on the date of contract or supply
and hence, the provisions of the said Act did not
apply;

ii) That the decree being a nullity, inherent lack of

subject matter of jurisdiction could be raised even
before the Executing Court;

iii) That the question of inherent lack of jurisdiction

can be raised in an execution proceedings, even
after rejection of challenge to the award under
Sections 34 and 37 of the Act of 1996 and hence,
dismissal of the said challenge made by the
Petitioner to the award dated 17.11.2017 does
not in any way curtail the right of the Petitioner to
raise the plea of inherent lack of jurisdiction
before the Executing Court;

iv) That if the provisions of the MSMED Act, were to

be applied, substantive rights of parties would be
effected;

v) That the same body cannot act as both Conciliator

and facilitator and there is a bar for the same
under Section 80 of the Act of 1996;
 6

vi) That the Executing Court gravely erred in

rejecting the application filed by the Petitioner
under Section 47 of the CPC.

8. Per contra, learned counsel for the Respondent

contesting the submissions made on behalf of the Petitioner

contends:

i) That the lis between the parties was not a suit

and hence, Section 47 of the CPC is wholly
inapplicable to the present case;

ii) That the Petitioner could not maintain an

application under Section 47 of the CPC before the
Executing Court;

iii) That want of jurisdiction raised by the Petitioner is

misconceived as the MSMED Act governs to contract
between the parties and the order of the Council has
attained finality since the challenge made by the
Petitioner to the same having been rejected and that
the application under Section 47 of the CPC filed by
the Petitioner before the Executing Court is only to
drag on the matter.

iv) That the Petitioner has barred from raising the

contention before the Executing Court under Section
47 of the CPC as a plea that the Respondent is not a
‘supplier’ under the MSMED Act was not raised in its
reply filed consequent to the notice of the conciliation
 7

proceedings issued by the Council. Hence, the

Petitioner cannot be permitted to raise the question
regarding want of jurisdiction of MSMED Act of 2006
before the executing Court.

v) That the Executing Court was perfectly justified

in dismissing the application filed by the Petitioner and
the present petition is also liable to be dismissed.

9. Both the learned counsels in the course of their

submissions have relied on various judgments and they shall be

considered during the course of this order to the extent that they

are necessary for adjudication of the issues that arise for

consideration.

10. This Court on 21.4.2022, ordered as follows:

“1. Sri Sriranga Subbanna, learned Senior

Counsel appearing for the petitioner submits
that the issue as regards the jurisdiction of the
Execution Court needs to be determined by
this Court. He submits that the petitioner is
willing to deposit the entire amount awarded
along with applicable interest as on date
within a period of eight weeks from today.

2. Notice be issued to the respondent so as to

consider the following issue:
Whether the judgment debtor
having filed an appeal on an
award and the appeal being
dismissed, he has still raised an
issue of jurisdiction under Section
 8

47 of the Civil Procedure Code in

the execution proceedings?

3. In view of the same, the further proceedings

in Execution No.376/2018 pending on the file
of the Principal District and Sessions Judge,
Bellary is stayed until the next date of
hearing.

4. If the aforesaid amount along with applicable

interest is not deposited by 17.06.2022, the
interim order above granted shall
automatically stand vacated.

5. Process fee and copies to be furnished by the

end of day tomorrow i.e., 22.04.2022, failing
which, interim order shall automatically stand
vacated.

6. The counsel for the petitioner shall also

permitted to serve the counsel for the
respondent/decree holder in the execution
proceedings.

7. Re-list on 20.06.2022.”

11. Having regard to the submissions made by both the

learned counsel before the question framed for which the notice

has been issued by this Court as is forthcoming vide order dated

21.4.2022 as extracted hereinabove, the following question is

required to be considered:

“Whether the petitioner was entitled to file the application

under Section 47 of the CPC raising the question regarding
inherent lack of subject matter jurisdiction with respect to
the award sought to be executed by the executing Court?”
 9

12. Before considering the said question, it is relevant to

note a few aspects with regard to the factual matrix of the present

case:

i) A notice dated 9.10.2014 was issued by the Member

Secretary, Council under Section 18 read with Section 17 of

the MSMED Act notifying the petitioner that the respondent

has filed Petition No.69/2014 for recovery of a sum of

`34,48,445/- and requiring the petitioner to reply to the said

notice within 15 days;

ii) The petitioner sent a reply dated 29.10.2015,

consequent to which on 17.10.2015 and 16.1.2016 hearings

were held for conciliation, in which the respondent

appeared, but the petitioner remained absent. Thereafter,

arbitration proceedings were commenced;

iii) The arbitration proceedings were held by the Council

on 2.4.2016, 29.11.2016, 26.4.2017 and 22.8.2017 and it is

forthcoming from the record that the petitioner herein who

was arrayed as the respondent in the said proceedings

attended only one hearing on 2.4.2016 and remained

absent on all the other hearings, whereas the

 10

respondent herein who was arrayed as petitioner in the said

proceedings attended all the hearings. Subsequently, vide

order/award dated 17.11.2017 was passed, whereunder the

Reference Petition No.69/2014 was allowed and the

petitioner herein was directed to pay to the respondent a

sum of `30,73,037/- along with interest. The said order

was passed under Section 18(3) of the MSMED Act.

13. Section 18 of the MSMED Act states as follows:

“18. Reference to Micro and small Enterprises

Facilitation Council.

(1) Notwithstanding anything contained in any other law

for the time being in force, any party to a dispute may,
with regard to any amount due under section 17, make a
reference to the Micro and Small Enterprises Facilitation
Council.
(2) On receipt of a reference under sub-section (1), the
Council shall either itself conduct conciliation in the matter
or seek the assistance of any institution or centre
providing alternate dispute resolution services by making a
reference to such an institution or centre, for conducting
conciliation and the provisions of sections 65 to 81 of the
Arbitration and Conciliation Act, 1996 (26 of 1996) shall
apply to such a dispute as if the conciliation was initiated
under Part III of that Act.
(3) Where the conciliation initiated under sub-section (2)
is not successful and stands terminated without any
settlement between the parties, the Council shall either
itself take up the dispute for arbitration or refer it to any
institution or centre providing alternate dispute resolution
services for such arbitration and the provisions of the
Arbitration and Conciliation Act, 1996 (26 of 1996) shall
then apply to the dispute as if the arbitration was in
 11

pursuance of an arbitration agreement referred to in sub-

section(1) of section 7 of that Act.
(4) Notwithstanding anything contained in any other law
for the time being in force, the Micro and Small
Enterprises Facilitation Council or the centre providing
alternate dispute resolution services shall have jurisdiction
to act as an Arbitrator or Conciliator under this section in a
dispute between the supplier located within its jurisdiction
and a buyer located anywhere in India.
(5) …. ”

(emphasis supplied)

14. It is forthcoming that consequent to the reference

made under Section 18(1) of the MSMED Act, the Council

conducted proceedings under Section 18(2) and 18(3) of the said

Act. In terms of Section 18(3) of the MSMED Act the arbitration

proceedings have been commenced.

15. Section 7(1) of the Act of 1996 states as follows:

“7. Arbitration agreement.

(1) In this Part, “arbitration agreement” means an agreement by

the parties to submit to arbitration all or certain disputes which
have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not.”
(emphasis supplied)

16. Hence, it is clear that the arbitration proceedings

commenced under Section 18(3) of the MSMED Act are as if the

parties had entered into an arbitration agreement as

 12

contemplated under Section 7(1) of the Act of 1996. To execute

the arbitral award the respondent has filed the execution

proceedings, wherein the application under Section 47 of the CPC

has been filed by the petitioner.

17. Learned counsel for the respondent objecting to the

entitlement of the petitioner to file an application under Section 47

of the CPC, submits that the Section 47 of the CPC can be

resorted to only in respect of a decree passed by a Civil Court and

since the decree that is sought to be executed in the present case

is in the nature of an arbitral award, recourse to Section 47 of the

CPC is not available to the petitioner.

18. Responding to the said contention, learned counsel for

the petitioner contends that the arbitral award is construed as a

decree in terms of Section 36 of the Act of 1996 for the purpose of

enforcement and the respondent having been filed the execution

petition to enforce the arbitral award as if the same was a decree,

the petitioner is entitled to take recourse to Section 47 of the CPC.

19. To consider the said contention, it is necessary to

notice the relevant statutory provisions.

 13

20. Section 47(1) of CPC reads as follows:

“47. Questions to be determined by the

Court executing decree. (1) All questions arising
between the parties to the suit in which the decree was
passed, or their representatives, and relating to the
execution, discharge or satisfaction of the decree, shall
be determined by the Court executing the decree and
not by a separate suit.”
(emphasis supplied)

21. Section 36(1) of the Act of 1996 as follows:

“36. Enforcement—(1) Where the time for making an

application to set aside the arbitral award under section
34 has expired, then, subject to the provisions of sub-
section (2), such award shall be enforced in accordance
with the provisions of the Code of Civil Procedure, 1908
(5 of 1908), in the same manner as if it were a decree of
the court.”
(emphasis supplied)

7
22. In the case of Sinnamani v. G.Vettivel the Hon’ble

Supreme Court while considering as to whether the proceedings

under the Trust Act can be construed as a suit, held as follows:

“12. The term “suit”, as such is not defined in the Code of

Civil Procedure. However, Section 26 CPC gives an
indication as to the manner in which suit has to be
instituted. Section 26 reads as under:

“26.Institution of suits.—(1) Every suit shall be

instituted by the presentation of a plaint or in such
other manner as may be prescribed.

7
(2012) 5 SCC 759
 14

(2) In every plaint, facts shall be proved by

affidavit.”

13. A suit can be instituted by presentation of a plaint and

Orders 4 and 7 CPC deal with the presentation of the
plaint and the contents of the plaint. Chapter I of the Civil
Rules of Practice deals with the form of a plaint. When the
statutory provision clearly says as to how the suit has to
be instituted, it can be instituted only in that manner
alone, and no other manner. ……….”
(emphasis supplied)

23. The Hon'ble Supreme Court in the case of Paramjeet

Singh Patheja v. ICDS Ltd.,8 while considering as to whether an

Arbitral award is a decree for the purpose of Section 9 of the

Presidency Towns Insolvency Act, 1909, after considering the

various provisions of the Act of 1996 as well as of the CPC has

held as follows:

“18. Further, the Arbitration Act, 1899 clearly draws the

distinction between courts and arbitrators. The Preamble
of the Act shows that it is an Act for dealing with
“arbitration by agreement without the intervention of a
court of justice”. Section 4(a) defines “court” and various
sections deal with the powers of the court. Section 11
provides for the making of an “award”. Section 15
provides for its enforcement. It can therefore be observed
that it is only for the purpose of enforcement of the award
that the arbitration award is treated as if it were a decree
of the court.

23. The words “decision” and “civil court” unambiguously

rule out an award by arbitrators.

39. Section 15 of the Arbitration Act, 1899 provides for

“enforcing” the award as if it were a decree. Thus a final
8
(2006) 13 SCC 322
 15

award, without actually being followed by a decree (as

was later provided by Section 17 of the Arbitration Act of
1940), could be enforced i.e. executed in the same
manner as a decree. For this limited purpose of
enforcement, the provisions of CPC were made available
for realising the money awarded. However, the award
remained an award and did not become a decree either
as defined in CPC and much less so far the purposes of an
entirely different statute such as the Insolvency Act are
concerned.

43. For the foregoing discussion we hold:

(i) ……….

(ii) ………..

(iii) …………..

(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 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 and Conciliation Act, 1996
cannot be construed to be a “decree” for the purpose of
Section 9(2) of the Insolvency Act.
(emphasis supplied)
 16

24. The Hon’ble Supreme Court in the case of Morgan

Securities & Credit (P) Ltd., v. Modi Rubber Ltd.,9 while

considering as to whether the provisions of Act of 1996 would

prevail over the provisions of the Sick Industrial Companies

(Special Provisions) Act, 1985, noticing the provisions of Act of

1996, has held as follows:

“40. An award under the 1996 Act indisputably stands on a

different footing vis-à-vis an award made under the
Arbitration Act, 1940. Whereas under the 1940 Act, an
award was required to be made a rule of the court to make
it enforceable, the 1996 Act, however, raises a legal fiction.
When an award is made, an application under Section 34 is
required to be filed questioning the validity thereof. Once
such an application is filed, it remains under suspension in
the sense that it would not be enforceable. Only upon
expiry of the period specified in Section 34 to challenge an
award or when such objection is refused, the same would
become enforceable. Section 36 merely specifies as to how
such an award can be enforced by laying down that it can
be enforced as if it were a decree.

41. The legal fiction created under Section 36 has,

therefore, a limited application. An award is, thus, to be
treated to be a decree even without intervention of the
court only for the purpose of its enforceability.”
(emphasis supplied)

25. The Hon’ble Supreme Court in the case of

10
Government of India v. Vedanta Limited , while considering

a question as to the limitation for filing an enforcement/execution

9
(2006) 12 SCC 642
10
(2020) 10 SCC 1
 17

petition of a foreign award under Section 46 of the Act of 1996,

has held as follows:

“69. Section 36 of the Arbitration Act, 1996 creates

a statutory fiction for the limited purpose of enforcement of
a “domestic award” as a decree of the court, even though it
is otherwise an award in an arbitral proceeding [Umesh
Goel v. H.P. Coop. Group Housing Society Ltd., (2016) 11
SCC 313 : (2016) 3 SCC (Civ) 795] . By this deeming
fiction, a domestic award is deemed to be a decree of the
court [Sundaram Finance Ltd. V. Abdul Samad, (2018) 3
SCC 622 : (2018) 2 SCC (Civ) 593] , even though it is as
such not a decree passed by a civil court. The Arbitral
Tribunal cannot be considered to be a “court”, and the
arbitral proceedings are not civil proceedings. The deeming
fiction is restricted to treat the award as a decree of the
court for the purposes of execution, even though it is, as a
matter of fact, only an award in an arbitral proceeding. In
Paramjeet Singh Patheja v. ICDS Ltd. [Paramjeet Singh
Patheja v. ICDS Ltd., (2006) 13 SCC 322] , this Court in
the context of a domestic award, held that the fiction is not
intended to make an award a decree for all purposes, or
under all statutes, whether State or Central. It is a legal
fiction which must be limited to the purpose for which it
was created. ………….

70. A Constitution Bench of this Court in Bengal

Immunity Co. Ltd. V. State of Bihar [Bengal Immunity Co.
Ltd. V. State of Bihar, (1955) 2 SCR 603 : AIR 1955 SC
661] , held that legal fictions are created only for some
definite purpose. A legal fiction is to be limited to the
purpose for which it was created, and it would not be
legitimate to travel beyond the scope of that purpose, and
read into the provision, any other purpose how so
attractive it may be. ……….”
(emphasis supplied)

26. A coordinate Bench of the Allahabad High Court in the

case of M/s.Larsen & Toubro Limited v. M/s Maharaji

 18

Educational Trust11 considering a similar situation has held as

follows:

“15. The use of words “the award shall be enforced

under the Code of Civil Procedure, 1908 in the same
manner as if it were a decree of the Court” in section 36
of the Act would not mean that the provisions of the
Code of Civil Procedure with regard to execution of
decree would become applicable in the execution of the
award. Section 36 only creates a fiction that an award
would be enforceable as if it were a decree of the Court
within the scope of Order XXI C. P. C. This enforcement
of the award under Order XXI CPC would not attract the
application of Section 47 CPC simply by use of the
expression “shall be enforceable as a decree” in Section
36 nor Section 36 can be read independent of other
provisions contained in the Act itself. The provisions of
the Act are to be reconciled with each other. Section 36
cannot be read out of context and independent of the
scheme of the Act. Reference to another statute does not
attract application of such other statute to the referring
statute unless expressly provided. A reference in a
statute to another statute cannot be read in a manner to
invite inconsistency in the referring statute. Any such
reference, if made, has to be interpreted in the context
in which the reference is made so as not to make
inconsistent the provisions of the referring statute itself.
If it brings inconsistency, then the same is to be avoided.
If Section 47 CPC is to be attracted, then the restrictions
provided in Section 34 of the Act and finality to arbitral
award by virtue of Section 35 of the Act would be
redundant. Section 36 cannot be interpreted in the
manner inconsistent with the provisions contained in the
other part of the Act. That apart the finality of the decree
under the Code is reached after the decision under
Section 47 C. P. C., if raised. But the legislature in its
wisdom thought it fit to incorporate the scope similar to
Section 47 C. P. C. in Section 34 of the Act in order to
bring finality before the award becomes executable.
Same procedure cannot be expected to be incorporated
in a statute twice. Legislature can never be interpreted
to intend repetition. At the same time, the object of the
11
2010 SCC OnLine All 1866
 19

Act is directed towards speedy and hazard-free finality

with a view to avoid long drawn proceeding based on
technicalities. Therefore, having regard to the provisions
of Sections 13, 16, 34 and 35, Section 36 cannot be
interpreted in a manner inconsistent with any of the
provisions of the Act to attract the provisions contained
in the Code in its entirety. Therefore, while considering
the application filed under Section 36 of the Act for the
execution of an award, the Court cannot overlook the
scope and ambit within which the Court is to execute the
award taking aid of the provisions for execution
contained in the CPC not inconsistent with the provisions
contained in the 1996 Act. Therefore, in my view,
Section 47 CPC cannot be attracted despite the words “in
the same manner as if it were a decree of the Court”
used in Section 36 when the award is sought to be
executed thereunder.

16. The matter can be viewed from another angle.

Section 47 CPC provides for questions to be determined
by the Court executing the decree. The said section
reads as under: …….

17. It is, thus, clear that in order to invoke section 47

CPC, there must be a decree. Section 2 (2) CPC defines
the decree. For a decision or determination to be a
decree, it must necessarily fall within the fore-corners of
the language used in the definition. Section 2 (2) CPC
defines decree to mean “formal expression of an
adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or
final. It shall be deemed to include the rejection of a
plaint and the determination of any question within
Section 144, but shall not include - (a) any adjudication
from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.” Explanation. _ A
decree is preliminary when further proceedings have to
be taken before the suit can be completely disposed of.
It is final when such adjudication completely disposes of
the suit. It may be partly preliminary and partly final.

18. The use of words “adjudication’ and “suit’ used by

Legislature clearly goes to show that it is only a court
 20

which can pass a decree in a suit commenced by plaint

adjudicating the dispute between the parties by means
of a judgment pronounced by the Court. The Hon'ble
Apex Court in the case of Paramjeet Singh Patheja v.
ICDS Ltd., AIR 2007 SC - 168 after considering the
definition of decree as contained in CPC in paragraph 29
has held that “it is obvious that an arbitrator is not a
Court, an arbitration is not an adjudication and,
therefore, an award is not a decree”. Again in paragraph
31, it has been held that words “decision’, and “Civil
Court’ unambiguously rule out an award by arbitrators to
be a decree. In the said case, the Hon'ble Apex Court
while considering the question as to whether an
insolvency notice under Section 9 of the Presidency Town
Insolvency Act, 1909 can be issued on the basis of an
arbitration award, held that such notice cannot be issued
for the reason the arbitration award is neither a decree
nor an order for payment within the meaning of Section
9(2) of the Insolvency Act and it is not rendered in a
suit. Thus, the award not being covered under the
definition of a decree, objection with respect to its
validity can only be raised as provided under Section 34
of the Act and not by taking resort to section 47 C. P. C.

20. ….

The issue that an award made in arbitral proceedings is

not a decree within the meaning of CPC having been
settled by the aforesaid pronouncement by the Hon'ble
Apex Court, the provisions of Section 47 C. P. C. cannot
be available to obstruct the execution of the award.

24. Thus, having regard to the provisions of Sections 5,

12, 13, 16, 34, 35 and 36 of the Act, the irresistible
conclusion is only grounds which can be pressed into
service for challenge to an award is within the ambit and
scope of Section 34 of the Act. Once the stage of section
34 is over and the questions that were raised or could
have been raised at that stage cannot be allowed to be
raised again and again by pressing into service section
47 of the Code of Civil Procedure at the time of execution
of award under Section 36 of the Act.

25. In view of the aforesaid facts and discussions, the

applicant did not have any right to challenge the
 21

enforceability of the award by taking recourse to Section

47 C. P. C. and the same were liable to be dismissed. It
is altogether different question that the objections have
been dismissed by the court below on different grounds
and reasons but since they are liable to be dismissed,
the impugned order does not require any interference.
The revision accordingly stands dismissed.”

27. A coordinate Bench of the High Court of Tripura and

Agartala in the case of State of Tripura, Rep.by Secy., Dept.of

PWD, Govt.of Tripura & anr., v. Ashes Deb12 has held as

follows:

“14. In the scheme of the Arbitration Act, a challenge

against an arbitral award can be made by taking recourse
to Section 34 of the Arbitration Act and that too on the
grounds set out under Sub-Section (2-A) of section 34 of
the Act. It has surfaced from the record that the present
petitioner against whom the arbitral awards were made
did not prefer any application under Section 34 of the Act.
After the time prescribed for filing such application
expired, the respondent award holder approached the
Court by filing a petition under Section 36 for
enforcement of the arbitral award. Only then, the
petitioner-State against whom the arbitral awards were
passed raised objection under Section 47, CPC. Section 5
of the Arbitration Act clearly provides that
“Notwithstanding anything contained in any other law for
the time being in force, in matters governed by this Part,
no judicial authority shall intervene except where so
provided in this Part”, which implies that the only remedy
available to the aggrieved party against whom an arbitral
award is passed, is Section 34 of the Arbitration Act.
Obviously, the petitioner-State did not avail such remedy
to resist the execution within the time prescribed under
the law. Petitioner raised objection to resist the execution
only by filing an application under Section 47, CPC despite
the specific remedy available under Section 34 of the

12
2022 SCC OnLine Tri 760
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Arbitration Act. In view of the prohibition imposed under

Section 5 of the Act, objection except under Section 34 of
the Act is not entertainable.”
(emphasis supplied)

28. In the present case, it is relevant to note that what is

sought to be executed in the execution proceedings is the award

passed by the Council which is required to be treated as a Arbitral

award having regard to Section 18(3) of the MSMED Act.

29. The Trial Court while considering the application under

Section 47 of the CPC, noticing that the petitioner had challenged

the award under Section 34 and 37 of the Act of 1996, has held

that Section 47 of the CPC has no application in the present

execution petition.

30. Although it is the vehement contention of the learned

counsel for the petitioner that having regard to Section 36 of the

Act of 1996 the award passed under the provisions of the Act of

1996 is to be treated as a decree and Section 47 of the CPC could

be invoked, it is relevant to note that having regard to Section

36(1) of the Act of 1996, the award passed under the provisions

of the said Act is required to be construed as a decree only for the

purpose of enforcement of the same and it is not open to the

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petitioner to invoke Section 47 of the CPC before the executing

Court.

31. Having regard to the judgments of the Hon’ble

Supreme Court in the cases of Paramjeet Singh Patheja8,

Morgan Securities11, Vedanta Limited10, this Court is in

complete agreement with the view expressed in Larsen and

Tubro11 as well as State of Tripura12 and in view of the said

authoritative pronouncements, it is clear that the petitioner

cannot take recourse of Section 47 of the CPC in the execution

proceedings initiated by the respondent.

32. Although various contentions have been urged on the

merits of the matter that the provisions of the MSMED Act are not

applicable, in view of the discussion made above that it shall not

be open to the petitioner to invoke Section 47 of the CPC. The

question framed for consideration at para 11 hereinabove is

answered in the negative.

33. In view of the aforementioned, the above petition is

dismissed as being devoid of merit.

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34. The amount deposited by the petitioner before this

Court be transmitted to the Executing Court which shall be

entitled to pass appropriate orders regarding the same in

accordance with law.

No costs.

Sd/-
JUDGE

BS/nd