V. RAMASUBRAMANIAN,

The petitioner, who secured an award in their favour in an arbitration case, has come up with the above civil revision petition, challenging the rejection of their application by the executing Court for transmission of the award to the District Court, Kadapa.

2. Heard Mr. B. Vijaysen Reddy, learned counsel for the petitioner.

3. Notice was ordered in this revision petition way back on 12.09.2008. Service of notice on the respondents was completed long time ago. But, there is no appearance for the respondents.

4. The petitioner herein raised a dispute with regard to the amounts that became due and payable from the respondents and the dispute was referred to arbitration. The sole arbitrator passed an award on 04.04.2006 in Arbitration Case No.17 of 2015. The arbitration was held at Tirupati and the award was passed there.

5. Thereafter, the petitioner filed an execution application before the District Court, Chittoor, under Section 36 of the Arbitration and Conciliation Act, 1996 seeking transmission of the award to the District Court, Kadapa, on the ground that the properties, against which execution could proceed, were located within the territorial jurisdiction of the District Court, Kadapa.

6. The said application was rejected by the District Court, Chittoor, on the ground that it was not the Court which passed the decree, so as to enable the said Court to transmit the same, under Section 39 of C.P.C., to another Court. In other words, the Court below held that the award was not a decree passed by that Court, as the same was also not filed before the Court.

7. But, after the advent of 1996 Act, the question of filing of the award into Court for the purpose of making the award a rule of Court, does not arise. The award passed by the arbitrator is deemed to be a decree which can be directly executed. Therefore, one set of reasoning given by the executing Court for rejecting the application was wrong.

8. There appears to be a great deal of confusion about whether an award passed by the arbitrator should be transmitted by one Court to another Court in which it can be executed. The High Courts of Bombay, Delhi and Madras have already taken the position that there is no necessity to have the award transmitted from one Court to another Court for execution. But, the Kerala and Karnataka High Courts appear to have taken a view that transmission was necessary.

9. One of us (VRS,J) had an occasion to consider this question in great detail, while being part of the Madras High Court, in a decision rendered in Kotak Mahindra Bank Limited Vs. Sivakama Sundari, (2011) 6 CTC 11. The relevant portion of the said judgment, which contains a detailed analysis of the provisions of Sections 38 to 45 of the Code of Civil Procedure and the provisions of the Arbitration and Conciliation Act, 1996, is extracted for useful reference.

7. Section 38 of the Code of Civil Procedure states that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. Section 37 of the Code defines the expression "Court which passed the decree", to include (i) the Court of first instance where the decree was passed by a Court of appellate jurisdiction, and (ii) the Court which would have had the jurisdiction to try the suit, if the Court of first instance had ceased to exist or ceased to have jurisdiction to execute it.

8. Section 39(1) of the Code enables the Court which passed a decree to send it for execution to another Court of competent jurisdiction. This may be done on an application of the decree holder and it may be done if any of the four contingencies in clauses (a) to (d) of Sub-section (1) of Section 39 arises. They are :

(a) If the judgment debtor resides or carries on business within the local limits of jurisdiction of such other Court;

(b) If the judgment debtor has no property within the local limits of jurisdiction of the Court which passed the decree, but has property within the local limi