Gaffar Khan Petitioner vs Magma Shrachi Finance Ltd. Kolkata

This revision application is against the order dated 9.4.2010 passed by learned subordinate Judge-1st Dhanbad in Execution Case No. 23 of 2009, whereby learned Court below has rejected the objection filed u/s 47 of the Code of Civil Procedure

The petitioner is a judgment-debtor in the said execution case. During pendency of the execution case, he filed an objection u/s 47 of CPC against the execution of the Award made under the provision of Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act"). The ground taken by the petitioner was that the award, in question, was not executable. It was illegal and defective, inasmuch as the award has been passed without taking into consideration the relevant aspects and the same is perverse

A rejoinder to the said objection was filed by the decree-holder stating, inter alia, that the objection u/s 47 of CPC is not maintainable. It has been stated that the judgment-debtor was a party. He has taken part in the arbitration proceeding. The award has not been challenged by him in the Court, which made the same rule of the Court and the same is final and binding on the petitioner. He can challenge the said award before the Executing Court

Learned Court below has considered the facts and circumstances of the case and submissions of the parties and found that the execution case was transferred from the City Civil Court, Calcutta for execution of the award. Learned Court below observed that an award made under the provisions of the Act can be challenged on various ground u/s 34 of the Act. The said provisions of Section 34 of the Act provides for detail of procedure. The Arbitration Act is a special Act with particular provisions for challenging the award and such objection is not maintainable u/s 47 of CPC

Learned counsel for the petitioner challenged the order on the ground that once the award is made, the same is to be executed by the Executing Court and the said Court should have heard and decided the objection u/s 47 of CPC on merit

I have heard learned counsel for the petitioner and perused the impugned order

Section 34 of the Act provides for setting aside the arbitral award. A detail procedure is provided giving opportunity to the aggrieved party to challenge the award. The said Act is a special Act and learned counsel below has rightly held that in view of the said provision in the Special Act and the previsions for setting aside the Award u/s 34 of the said Act, an objection u/s 47 of CPC on the ground covered by the provisions u/s 34 of Arbitration and Conciliation Act, 1996, is not maintainable

I find no illegality or arbitrariness in the order of learned Court below. There is no merit in this revision application. The same is accordingly, dismissed