J. P. SINGH, J.

( 1 ) THIS Appeal under Order XLIII Rule 1 and Section 105 of the code of Civil Procedure is directed against the order dated 28. 7. 2006 passed by the learned Single Judge in the Execution Petition. The Single Bench has dismissed the Execution Petition on the ground that mere pendency of the Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) stays the execution.

( 2 ) WE have heard Mr. Jayant Bhushan, Sr. Advocate learned counsel for the Appellant and Mr. Jayant Nath, Sr. Advocate learned counsel for the respondent.

( 3 ) BRIEFLY the facts are that the Appellant herein had done some interior work (renovations) in the office of the Respondent. The disputes were referred to the Arbitrator who delivered an Award on 22. 10. 1999. The Respondent herein filed an Application (Objections) under Section 34 of the Act before the learned Single Judge for setting aside the Award. The learned Single Judge modified the Award vide order dated 6. 4. 2004, in respect of claim No. 7; set aside the Award in respect of claim No. 3 and upheld rest of the Award. So practically the decree stood passed in favour of the Appellant though not exactly as claimed by it. Both the parties filed appeals under Section 37 of the act against the judgment dated 6. 4. 2004 passed by the learned Single Judge. The said appeals are pending before the Division Bench of this Court. Stay of execution however has not been granted.

( 4 ) IN the Execution Petition filed by the Appellant herein, the question before the learned Single Judge was as to whether the execution petition was maintainable in view of the pendency of the appeals. After discussing the facts and the law the learned Single Judge held that during pendency of the appeals Execution Petition could not be entertained and dismissed the same. Hence the Execution First Appeal by the claimant.

( 5 ) LEARNED counsel for the appellant has vehemently argued that by treating the pending appeals as automatic stay the very basic purpose of the arbitration and Conciliation Act, 1996 stands defeated.

( 6 ) THE learned counsel for the Respondent has vehemently argued that an appeal is continuation of original proceedings and the Award is not yet final because the same could be set aside in the Appeal and then the judgment of the Single Bench will merge in the judgment of the Appellate Court (DB), therefore there was no point in continuing with the execution by the learned single Judge. This, in fact, is the gist of judgments referred to in para 10 of the impugned Judgment on the point of merger. There is no quarrel about the legal position, but can it help the Respondent"

( 7 ) LEARNED counsel for the Appellant has cited the Judgment titled vipul Aggarwal Vs. M/s Atul Kanodia and Co. , reported in AIR 2004 Allahabad 205. Briefly the facts in the said case were that an Award was passed by the Arbitral tribunal under the Arbitration and Conciliation Act, 1996 against the petitioner. The Petitioner filed an application under Section 34 of the said Act for setting aside the Award but the application was dismissed. An appeal against the said order was also dismissed. The Petitioner filed special leave to appeal in the Hon'ble Supreme Court of India, which is pending. Meanwhile an application for executing the Award was filed. The Petitioner objected that the appeal was pending before the Hon'ble Supreme Court against the order rejecting his application under Section 34 of the Act, therefore the Award was not final because the Appeal before the Hon'ble Supreme Court was the continuation of the proceedings. The said application was rejected by the District Judge. The High court after discussing the facts and the law opined that since stay was not granted by the Hon'ble Supreme Court, the execution should proceed because the main purpose of legislating the Arbitration and Conciliation Act, 1996 was to give a speedy remedy. The case before us is also s