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Appln.No. 3170 of 2022

IN

EP DR.No. 45983 of 2020

C.V.KARTHIKEYAN, J.

This application has been filed seeking interference of an order of the

learned Master dated 22.04.2022 in EP DR.No. 45983 of 2020. The order

was passed in A.No. 2457 of 2021. The respondent in the unnumbered

execution petitoin is the petitioner herein. The Decree holder had necessity to

file EP DR.No. 45983 of 2020 to put into effect an award of the arbitrator

dated 04.02.2008.

2. In the unnumbered Execution Petition, the Decree holder had filed

an application under Order 21 Rule 41 of the Code of Civil Procedure seeking

a direction to the Judgment Debtor to declare his assets to enable

enforcement of the arbitration award.

3. Before examining the facts of the case, a few dates are required to

be pointed out. The award was dated 04.02.2008. The Execution Petition

was filed in July 2020. In the meanwhile, the applicant herein, who was the

Judgment Debtor, and had suffered an adverse order in the award, filed

O.P.No. 476 of 2008.

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4. It is contended by Mr.V.P.Raman learned counsel, for the

respondent herein / petitioner in the execution petition that with the filing of

petition under Section 34 of the Arbitration and Conciliation Act 1996, an

automatic stay enures to the applicant, who files such petition. That Original

Petition No. 476 of 2008 meandered around and finally was dismissed on

07.12.2017. Challenging that order of the learned Single Judge, an Original

Side Appeal was filed and that was also dismissed to the adverse interest of

the petitioner herein by a Judgment dated 13.03.2019. It is therefore

contended by Mr. V.P.Raman that only after 13.03.2019 did the decree

holder get a firm hold over the award to exercise right was to put it to

enforcement. Accordingly, the Execution Petition was filed on 20.07.2020.

5. The main objection raised in this Application and which objections

had actually been also advanced before the learned Master was, in my opinion

a shightly misguided interpretation of Sections 34 and 36 of the Arbitration

and Conciliation Act 1996. It had been stated that in the year 2015, there

was an amendment brought about to the said provisions and it is contended

that the said amendment would have retrospective effect. It is therefore

contended that even though the award was of the year 2008, the amendment

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of the year 2015 would ennure to the award and owing to such amendment in

the year 2015, an Execution Petition filed in the year 2020 automatically

stood barred.

6. To support this contention, the learned counsel for the applicant

relied on a Judgment of the Hon'ble Supreme Court reported in (2018) 6 SCC

287 [ Board of Control for Cricket in India Vs. Kochi Cricket Private

Limited and Others]. Specific referrence was drawn to paragraph Nos. 67

wherein the effect of the amendment and its retrospective nature was

discussed and it was held as follows:-

“67.

In 2004, this Court’s Judgment in

National Aluminium Company Ltd. V. Pressteel

& Fabrications (P) Ltd., (2004) 1 SCC 540 had

recommended that Section 36 be substituted, as

it defeats the very objective of the alternative

dispute resolution system, and that the Section

should be amended at the earliest to bring

about the required change in law. It would be

clear that looking at the practical aspect and the

nature of rights presently involved, and the

sheer unfairness of the unamended provision,

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which granted an automatic stay to execution of

an award before the enforcement process of

Section 34 was over (and which stay could last

for a number of years) without having to look at

the facts of each case, it is clear that Section 36

as amended should apply to Section 34

applications filed before the commencement of

the Amendment