The court affirmed that challenges to the appointment of an arbitrator during execution proceedings are not permissible, reaffirming the principles of timeliness in raising arbitration-related challenges.

1. Challenge in the instant revision is the order no. 39 dated 11.01.2022 passed by Ld. Additional District Judge, 6^th Court, Alipore, South 24 Parganas wherein the application filed at the behest of the petitioner under Section 47 of the Code of the Civil Procedure (hereinafter referred to as CPC) was dismissed.

2. The fact of the case in a nutshell is to the effect that one Radha Krishan Poddar, the predecessor in-interest of the decree holder had instituted an execution proceeding which was registered as Execution Case no. 9 of 2002 in order to execute the award dated 22.12.2001 passed in the arbitral proceedings. But, on 24.08.2014 the original award holder passed away and the opposite parties herein being the legal heirs of the original award holder were substituted by the Court vide order dated 30.10.2014. But, later on in the year 2018 the opposite parties became aware of the fact that the Ld. Civil Judge has no jurisdiction and accordingly withdrew the proceeding and filed an execution proceeding afresh being arbitration execution case no. 535 of 2018 for execution of the arbitral award dated 22.12.2001 before the Ld. District Judge, Alipore who, in turn, transferred the same to the Ld. Additional District Judge, 15th Court, Alipore which was again subsequently transferred to the Ld. Additional District Judge, 6^th Court, Alipore.

3. During pendency of such execution proceeding the decree holder took out an application under Order 21 Rule 37 & 38 read with Section 151 of the CPC. Upon obtaining notice of the same the petitioners filed an application under Section 47 of the CPC, thereby questioning the execution of the said decree. But the Ld. Executing Court vide its impugned order dismissed the application preferred by the petitioners on the ground that there was no scope for the executing Court to go beyond the decree.

Hence, the interference of this Court is sought for.

Argument Advanced:-

4. Mr. Subhasis Sarkar, Ld. Counsel appearing on behalf of the petitioners/award debtors assailed the order impugned in this revision application by submitting inter alia that the title execution was filed before a court having no jurisdiction. It has been further submitted that the withdrawal of an execution application without obtaining proper leave amounts to complete disposal of legal proceedings. It is further submitted that consequence of defective filing is knowledge and is of no consequence and the petitioner is not entitled to benefit of initial filing or after curing the defect.

5. In support of his contention, Mr. Sarkar relied on a cases of Vidya Drolia and others vs. Durga Trading Corporation (along with SLPS (C ) Nos. 5605-606 of 2019 & SLP (C ) No.111877 of 2020), (2021) 2 SCC & Delhi Development Authority vs. M/s Durga Construction Co. /b>. (unreported)

6. In stark contrast, Mr. Chayan Gupta Ld. Counsel, appearing on behalf opposite parties / award holders has submitted that the application under Section 47 of the CPC was filed challenging the appointment of arbitrator and also executability of the decree. Mr. Gupta continued his argument by submitting inter alia that appointment of arbitrator cannot be challenged at the time of execution of the award without re-coursing the steps under Section 16 of the Arbitration and conciliation Act, 1996 (for short Act of 1996). It has been further submitted that judgment debtor deliberately refrained from challenging the award under Section 34 of the Act of 1996 and therefore the arbitral award attained its finality within the meaning of Section 35 of the Act of 1996.

7. On the issue of executability of the award is concerned Mr.Gupta has vehemently contended that award debtor failed to appear in the execution proceeding and in the month of Sep