JUDGMENT AND ORDER (Oral)

This is an appeal under Section 37 (1) (b) of the Arbitration & Conciliation Act, 1996, challenging the validity of judgment and order dated 08.07.2005 passed by the learned District Judge, Dibrugarh, in Misc. Arbitration Case No. 1 of 2005. By this order the learned District Judge allowed an application filed under Section 34 of the said Act and set aside the award of the arbitrator with further direction to the parties to appear before the arbitrator again for resolution of their dispute.

2. The respondent No.1 instituted the proceeding under Section 34 of the Arbitration & Conciliation Act, 1996, before the learned District Judge at Dibrugarh vide Misc. Arbitration Case No. 1 of 2005 stating that he as a tenant had entered into a commercial premises under the appellant No.1 herein. The tenancy was created by a lease deed registered on 12.04.1994 and one of the recitals of the said deed was that in case of any dispute or difference between the parties regarding anything connecting the demised premises, it shall be referred to the sole arbitration of Sri Sankar Lal Dhelia and the award passed by him shall be final, conclusive and binding between the parties. The lease deed expired on 31.03.20001 and the tenancy went on fresh terms and conditions, but no further deed was executed. While everything was going on smoothly, all on a sudden on 04.01.2005 the respondent No.1 was evicted from the premises in execution of award vide Title Execution No. 1 of 2004. After being evicted, the petitioner came to know that there was arbitration proceeding and that there was an award passed against him. The petitioner contacted his advocate to find out all necessary details to obtain certified copies of the case record which he received on 05.01.2005 thereafter. Having come to know about the award dated 28.01.2004, the petitioner filed proceeding under Section 34 of the Arbitration & Conciliation Act, 1996, on 11.02.2005. He further came to know that the award was shown to have been sent to him under registered cover on 08.03.2004 but he did not receive any award as claimed. With these averments the respondent No.1 made prayer for setting aside of the award on the ground that the same was vitiated by violation of the principles of natural justice; that the arbitration agreement was non-existent after 31.03.2001; that the arbitrator being a witness of the lease deed could not have acted as arbitrator; that the dispute in regard to eviction of tenant is not an arbitrable dispute etc. Misc. Case No. 37 of 2005 was registered in regard to said application and the learned Court issued notice upon the present appellant who appeared and submitted objection.

3. The appellant specifically denied the averments made in Paragraph – 4 of the application in regard to ignorance about the arbitration proceeding and also as to knowing about the award only on 05.01.2005 after receipt of records. In Paragraph-11 of the objection it was stated that the award having been already executed by the same Court there was no scope of the petition under Section 34 the Arbitration & Conciliation Act, 1996. It was further pleaded that the award having been made a decree of the Court and consequently it having been executed, there was no scope for the Executing Court to go behind the decree and to set it aside. The award, therefore, being non-existent under the aforesaid circumstances there was no question of entertainment of the application under Section 34 of the Arbitration & Conciliation Act, 1996. The appellant, therefore, prayed for dismissal of the proceeding. The arbitrator who was impleaded as opposite party No.2 in the aforesaid proceeding also filed a separate written statement. In paragraph- 9 of the objection, the arbitrator stated that the petitioner of the proceeding was sole respondent before proceeding in arbitration and that he was intimated about the award in due time on 08.03.2004 through post. This opposite party also submitted

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