An arbitral award remains executable unless challenged under Section 34 of the Arbitration and Conciliation Act, 1996, even if the arbitrator was unilaterally appointed.

ORDER :

This civil revision petition is at the instance of one of the judgement- debtors seeking to strike off the Execution Petition in E.P.No.86 of 2022, which was filed by the 1^st respondent and is pending on the file of the learned I Additional District Judge, Tindivanam, to get executed the Award dated 17.03.2021 passed by the learned arbitrator in C.P.No.YKR/SCUF/179/2020.

2. The revision petitioner is the 1^st respondent and the respondents 2 and 3 are the respondents 2 and 3 in the arbitral award and the 1^st respondent is the claimant in the arbitral proceedings, which arose, out of a dispute that arose over a loan transaction. The 1^st respondent, a financial institution, referred the matter to the sole arbitrator to adjudicate the dispute arose between the revision petitioner and the respondents 2 and 3 and themselves. The sole arbitrator passed an award on 17.03.2021 whereby the respondents in the arbitral proceedings were directed to pay to the claimant a sum of Rs.21,70,626/- together with interest at the rate of 18% p.a. from 07.12.2020 till date of realisation of the amount in full and also to pay a sum of Rs.5,000/- towards the cost of arbitration proceedings. On the basis of the award, the 1^st respondent initiated an execution proceedings on the file of the learned I Additional District Judge, Tindivanam, for attachment and sale of immovable properties belonging to the revision petitioner/1^st judgement-debtor. That application was taken on file as E.P.No.86 of 2022 and the same has been pending for execution of the decree.

3. On notice in the Execution Petition, the revision petitioner/1^st judgement debtor entered appearance in the execution proceedings through counsel. It is however seen from the typed set of papers that on 15.03.2023, as the judgement-debotors did not file their counter despite conditional order, and they were not present, the executing court set the judgement debtors ex parte and proceeded further to order for attachment of the property and adjourned the matter to 25.04.2023. At that stage, the 1^st judgement-debtor has come forward with the present revision petition seeking to strike off the execution petition.

4. It is seen from the typed set of papers that subsequently, the 1^st judgement-debtor has filed his counter opposing the execution petition and inter alia contending that he had altogether paid a sum of Rs.3,00,000/-, but the claimant had not taken that amount into credit. Despite repeated demands, the claimant has not given the particulars of instalments paid thus far. The property sought to be attached is not his absolute property and his two sisters have equal shares in the same.

5. In this revision petition, on notice, the 1^st respondent/decree-holder claimant entered appearance through counsel. The respondents 2 and 3, the other judgement debtors have not entered appearance either in person or through counsel, despite their name having been printed on the cause list. Thus, this court had no other option except to proceed with further in the revision petition and pass orders on merits.

6. Heard Mr.G.Mohammed Aseef, learned counsel for the revision petitioner/1^st judgement-debtor and Mr.J.Vikraman, learned counsel for the 1^st respondent/decree-holder.

7. Mr.G.Mohammed Aseef, learned counsel for the revision petitioner/judgement debtor would submit that the order of attachment was based on an ex parte award passed by the sole arbitrator appointed unilaterally without even giving an opportunity to the revision petitioner. The revision petitioner was also not served with any notice in the arbitral proceedings. According to the learned counsel, the unilateral appointment of an arbitrator would itself create an ineligibility.

8. Mr.G.Mohammed Aseef would further submit that it is the settled law that even if an award is not set aside under the procedure established in Section 34 of the Arbitration and Conciliation Act, 1996, the executing court can step in and hold that an award passed by the u