The arbitral award only determined the shares of the parties and did not constitute a final decree. The suit proceedings should have been treated as execution proceedings to enforce the arbitration award by carrying out partition by metes and bounds.

S.P. Pathak, J.-Appellant-plaintiff Jai Narayan has challenged the judgment and decree dated 010.2003 passed by learned Addl. District Judge No.1, Bikaner, whereby while deciding the application moved under Order 7 Rule 11 CPC by respondent-defendant, the Court below has dismissed the suit filed by appellant-plaintiff for partition and permanent injunction finding it a matter falling under the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996).

2. Brief facts, giving rise to the present appeal, are that the appellant-plaintiff filed a suit giving details of the joint disputed property of appellant and defendants No.3 to 10 situated at Station Road, Bikaner. It was averred in the suit that the said property was mortgaged to the firm Meghraj Mohanlal by one Gewarchand and later on the firm Meghraj Mohanlal purchased the said property of which Sohanlal and Meghraj were partners. It is also averred in the suit that the said property belonged to both the partners of the firm, who expired long back and they had equal share and the said property, which came in possession and ownership of their decendents. It is further averred that present appellant is son of one of the partners Meghraj and there being a dispute in respect of the suit property it was settled by arbitration on 28.08.1997 in which the share of present appellant-plaintiff was determined as 1/6 of the joint property. It is also averred that without partitioning the property the respondents are creating interest in favour of purchasers respondent No.11 & 12 and, therefore, the appellant-plaintiff filed the suit seeking relief for partitioning the suit property by metes and bounds and restraining the respondent-defendants No.3 to 12 from demolition or construction in the suit property so also restraining respondent No.2 from registering any document in respect of the suit property. An application for temporary injunction under Order 39 Rule 1 & 2 was also filed. The respondent-defendants replied the suit by filing written statement and the learned trial Court appointed Commissioner on 02.07.2003. After that, respondent-defendant No.6 filed an application under Order 7 Rule 11 CPC read with Section 35 and 36 of the Arbitration and Conciliation Act 1996 and contended that the matter relates to enforcement of the arbitration award and as such the suit is barred by law.

.3. The learned trial Court after hearing parties on the application while allowing the application of respondent-defendant No.6 has dismissed the suit of the plaintiff . Aggrieved, the appellant-plaintiff has approached this Court.

.4. I have heard learned Counsel for the parties and considered the submissions made before me.

5. It is to be seen that in the present case, a suit for partition by metes and bounds was filed and while deciding the application moved by defendant No. 6 under Order 7 Rule 11 CPC vide judgment dated 010.2003 the suit itself has been dismissed holding that it was barred by law. The learned trial Court while accepting the application under Order 7 Rule 11 CPC came to the conclusion that in view of Sections 5, 14, 35 and 36 of the Act of 1996 the suit was barred by law. The learned trial Court also came to the conclusion that in view of arbitral award dated 28.08.1997 the dispute was between Bulakidas and his brothers in relation to the disputed property.

.6. After carefully examining the impugned judgment of the learned trial Court, I am of the opinion that the learned trial has not correctly appreciated the legal position in the case in arriving at a conclusion that the case is barred by law. Section 5 of the Act of 1996 only makes a mention that the matters governed under Part I of the Act shall not be intervened by the judicial authority whereas Section 16 is in relation to the jurisdiction of arbitral tribunals and Section 35 states that arbitral award shall be final and binding between the parties. Section 36 which is relevant for the presen