An order under Section 47 of the Code of Civil Procedure, 1908 is not appealable despite the insertion of Section 99A and the amendments to Section 2(2) and Section 99 by the Amendment Act of 1976.

ORDER :

P.G.Ajithkumar, J.

A Full Bench of this Court in Mohamemad Khan v. State Bank of Travancore [1978 KLT 262] held,

“.....There is also the fact that the order challenged in this appeal is not any adjudication in a suit. It is an adjudication in execution proceedings, such adjudication would have been appealable as a decree when the definition of 'decree' was wide enough to include an order under Section 47. If it had thus been a decree within the meaning of Section 2(2) we would have been called upon to consider whether, notwithstanding the absence of a provision for appeal in the enactment, the order of the court below also should be considered as an appealable order. But the express omission of orders under Section 47 of the Code of Civil Procedure from the definition of decree in Section 2(2) has rendered orders under Section 47 not appealable since the commencement of the Code of Civil Procedure Amendment Act 104 of 1976. The order impugned in this case was passed subsequent to such amendment. Hence we hold that no appeal would lie against the order of the learned Subordinate Judge.”

2. Apparently, the said principle of law would have to hold the field and this appeal filed under Section 96 of the Code of Civil Procedure, 1908 challenging the order of the Additional District Judge-I, Mavelikkara in a petition filed under Section 47 ought to be held not maintainable. The submission of the learned counsel for the respondent in that lines is, however, opposed by the learned counsel for the appellants by contending that the said decision is per incuriam inasmuch as the Full Bench did not advert to the provisions of Sections 97(2)(a) and 97(3) of the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976). The learned counsel for the appellants would submit that the intent of Section 97(2)(a) of the Amendment Act of 1976 is that despite the amendment in Section 2(2) of the Code, an appeal against determination of a question as is referred to in Section 47 would lie and any interpretation making such an appeal not maintainable cannot be legal. In the view of the learned counsel, saving of such an appeal is obvious from the language of Section 97(2)(a) of the Amendment Act of 1976 for, the omission of words like ‘pending' or ‘filed before the commencement’ in Section 97(2)(a) is a casus omissus. It is contended that had the said provisions been considered, the Full Bench would not have taken such a view, and therefore the decision in Mohamemad Khan (supra) is incorrect.

3. This appeal relates to an arbitration proceedings initiated by the respondent against the appellants and their predecessor Sri.Vasudevan. Pending the arbitration proceedings Sri. Vasudevan expired. An Award was eventually passed in the said arbitration proceedings and the same was put in execution in E.P.No.192 of 2019. The appellants objected to the said execution petition by filing E.A.No.34 of 2021 invoking the provisions of Section 47 of the Code. They contended that copies of the relevant records were not furnished to them as insisted by Section 25(a) of the Arbitration and Conciliation Act, 1996 and a copy of the Award was not served on them as contemplated in Section 31(5) of the Act. And, it was urged that for such infractions the award is not executable. The Additional District Court dismissed that Execution Application as per the order dated 07.04.2022. The said order is under challenge in the appeal.

4. Any question regarding execution, discharge and satisfaction of a decree is liable to be determined by the court executing the decree and not by a separate suit. The question involved in E.A.No.34 of 2021 was also one relating to the executability of the award and therefore, one coming under Section 47 of the Code. The learned counsel appearing for the respondent would submit that after the amendment of Section 2(2) of the Code by deleting ‘Section 47 or’, a determination under Section 47 cannot be deemed to be a decree and therefore is not ap