# Sanjay Agarwal Revisionist v. Rahul Agarwal & Ors

- **Citation:** (2024) 1 ILRA 328
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-09
- **Case number:** Civil Revision No. 27 of 2019
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-agarwal-revisionist-v-rahul-agarwal-ors-51150
- **Pages:** 17

## Headnote

(A) Civil Law - Code of Civil Procedure,
1908 - Section 115 - Revision , Section 47
- Questions to be determined by the court
executing decree, The Arbitration and
Conciliation Act, 1996 - Section 9 - power
to grant interim measures of protection by
the Court , Section 34 - Application for
setting aside arbitral award ,Section 36 -
Enforcement , Section 16(6) - party
aggrieved by such an arbitral award may
make an application for setting aside such
an arbitral award in accordance with
section 34 - Arbitrator's award is subject
to
challenge
by
aggrieved
parties,
following the procedure provided by the
Act of 1996 - Issue of jurisdiction should
be raised before the Arbitrator under
Section 16 of the Act, 1996 - Parties
aggrieved by the award who have not
taken any of the measures provided in the
Act,
1996,
are
legally
barred
from
challenging the validity or legality of the
award at the execution stage, as per
Section 36 of the Act, 1996.(Para - 31)
Association leased property to a revisionist and
his grandfather - property was to be developed
according to prescribed plan - lessees were
entitled to profits - revisionist's father, executed
a relinquishment deed declaring the property as
the exclusive property of revisionist - Agreement
was
made
for
property
distribution
and
development work - death of father - lead to
legal disputes over his assets and the property
leased by the association - Dispute relates to
arbitration and proceedings - Meetings held -
Final award - Maintainability of - application filed
by opposite party under Section 47 of CPC -
challenging legality and/or validity of award on
diverse grounds - application rejected by District
judge on ground of non-maintainability - Civil
Revision filed - Controversy centers on validity
of arbitration award made by arbitrator. (Para -
2,3,14,31)

HELD:-District Judge rightly exercised his
jurisdiction and rejected objections filed by
revisionist under Section 47 of the Civil
Procedure Code. Revisionist should have raised
objections to the award before the District
Judge under Section 34 of the Act of 1996, and
not in execution proceedings once the award is
final as a Civil Court decree. (Para -33)

Revision dismissed. (E-7)

List of Cases cited:

## Text

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328 INDIAN LAW REPORTS ALLAHABAD SERIES
matter in paragraph Nos. 84, 84.1 and 84.2
observed as under-

84. This court answers the reference in
the following manner:

84.1. Regarding question No. 1, it is
held that the protection granted under
Section 438 Cr.P.C. should not always or
ordinarily be limited to a fixed period; it
should inure in favour of the accused
without any restriction as to time. Usual or
standard conditions under Section 437 (3)
read with Section 438 (2) should be
imposed; if there are peculiar features in
regard to any crime or offence (such as
seriousness or gravity etc.), it is open to the
court to impose any appropriate condition
(including fixed nature of relief, or its being
tied to an event or time bound),etc.

84.2. The second question referred to
this court is answered, by holding that the
life of an anticipatory bail does not end
generally at the time and stage when the
accused is summoned by the court, or after
framing of charges, but can also continue
till the end of the trial. However, if there
are any special or peculiar features
necessitating the court to limit the tenure of
anticipatory bail, it is open for it to do so.

17. Therefore, from the law laid down
by the Constitution Bench of the Apex
Court in the case of Sushila Aggarwal
(supra) it reflects that the protection
granted under Section 438 Cr.P.C. should
not always or ordinarily be limited to a
fixed period and it should inure in favour of
the accused without any restriction as to
time. Constitution Bench of the Apex
Court, further observed that the life of an
anticipatory bail does not end generally at
the time and stage when the accused is
summoned by the court, or after framing
charges, but can also continue till the end
of the trial. However Apex Court further
observed that if there are any special or
peculiar features necessitating the court to
limit the tenure of anticipatory bail, it is
open for it to do so.

18. In case at hand, while granting
anticipatory bail to the applicant on
16.8.2022 this Court did not limit the
tenure of his anticipatory bail and therefore,
in view of the observation made by the
Constitution Bench of the Apex Court in
the case of Sushila Aggarwal (supra)
anticipatory bail granted to the applicant
vide order dated 16.8.2022 passed by this
Court should continue till conclusion of the
trial and no interpretation can be made that
while earlier granting anticipatory bail to
the applicant this Court enlarged the
applicant on anticipatory bail only till
submission of the police report under
section 173(2) Cr.P.C.

19. In view of the above, there is no
need to pass any fresh order on the
anticipatory
bail
application
of
the
applicant. Applicant shall continue on
anticipatory bail earlier granted to him by
this Court vide order dated 16.8.2022
passed in Crl. Misc. Anticipatory Bail
Application u/s 438 Cr.P.C. No. 5682 of
2022, till conclusion of the trial.

20. With the above observation, the
anticipatory bail application, accordingly,
stands disposed off.
----------
(2024) 1 ILRA 328
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.01.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Civil Revision No. 27 of 2019
1 All. Sanjay Agarwal Vs. Rahul Agarwal & Ors.
329
Sanjay Agarwal ...Revisionist
Versus
Rahul Agarwal & Ors. ...Respondents

Counsel for the Revisionist:
Subhash Vidyarthi, Pritish Kumar, Shantanu
Gupta

Counsel for the Respondent:
Kshitij Mishra, Sanjay Bhasin, Sunil Sharma

(A) Civil Law - Code of Civil Procedure,
1908 - Section 115 - Revision , Section 47
- Questions to be determined by the court
executing decree, The Arbitration and
Conciliation Act, 1996 - Section 9 - power
to grant interim measures of protection by
the Court , Section 34 - Application for
setting aside arbitral award ,Section 36 -
Enforcement , Section 16(6) - party
aggrieved by such an arbitral award may
make an application for setting aside such
an arbitral award in accordance with
section 34 - Arbitrator's award is subject
to
challenge
by
aggrieved
parties,
following the procedure provided by the
Act of 1996 - Issue of jurisdiction should
be raised before the Arbitrator under
Section 16 of the Act, 1996 - Parties
aggrieved by the award who have not
taken any of the measures provided in the
Act,
1996,
are
legally
barred
from
challenging the validity or legality of the
award at the execution stage, as per
Section 36 of the Act, 1996.(Para - 31)
Association leased property to a revisionist and
his grandfather - property was to be developed
according to prescribed plan - lessees were
entitled to profits - revisionist's father, executed
a relinquishment deed declaring the property as
the exclusive property of revisionist - Agreement
was
made
for
property
distribution
and
development work - death of father - lead to
legal disputes over his assets and the property
leased by the association - Dispute relates to
arbitration and proceedings - Meetings held -
Final award - Maintainability of - application filed
by opposite party under Section 47 of CPC -
challenging legality and/or validity of award on
diverse grounds - application rejected by District
judge on ground of non-maintainability - Civil
Revision filed - Controversy centers on validity
of arbitration award made by arbitrator. (Para -
2,3,14,31)

HELD:-District Judge rightly exercised his
jurisdiction and rejected objections filed by
revisionist under Section 47 of the Civil
Procedure Code. Revisionist should have raised
objections to the award before the District
Judge under Section 34 of the Act of 1996, and
not in execution proceedings once the award is
final as a Civil Court decree. (Para -33)

Revision dismissed. (E-7)

List of Cases cited:

1.
L&T
Ltd.
Vs
Maharaji
Edu.
Trust,
(2010)10SCC Online All 1866

2.
Dharma
Prathisthanam
Vs
Madhok
Construction (P) Ltd., (2005) 9 SCC 686

3. Major S.S. Khanna Vs Brig. F.J. Dillon, (1964)
4 SCR 409

4. Manick Chandra Nandy Vs Debdas Nandy,
(1986) 1 SCC 512

5. L&T Ltd. Vs Maharaji Edu. Trust , 2011 (2)
AWC 1682 (All)

6.
Dharma
Pratishthanam
Vs
Madhok
Constructions , (2005) 9 SCC 686

7. Sanjay Gupta Vs S.K. Mishra, 2023 (7) ADJ
747 (LB)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Pritish Kumar, learned
counsel for the revisionist as well as Sri
Sanjay Bhasin, learned Senior Advocate
assisted by Sri Sunil Sharma, learned
counsel for the opposite parties.

2. The present civil revision has been
filed assailing the order dated 30/01/2019
passed by the District Judge, Lucknow
whereby he has rejected the application
under Section 47 of the Civil Procedure
330 INDIAN LAW REPORTS ALLAHABAD SERIES
Code preferred by the revisionist. The
controversy in the present case centers
around the validity of an arbitration award
made by the arbitrator Sri Anirudh Mithal,
General Manager, Indian Railways (Retd.)
dated 07/05/2008.

3. Sri Pritish Kumar, learned Counsel
for the revisionist has submitted that
National
Council
for
Young
Men's
Christian Association of India had executed
a lease deed in respect of the property
situated at 13, Rana Pratap Marg, Lucknow
in favour of revisionist and his grandfather
Sri Kishori Lal Agarwal for a period of 65
years. He submitted that the property was
to be developed in the manner prescribed,
and the lessees were also entitled to the
gains in profits which may accrue from the
said property. On 19/11/1986 Sri Motilal
Agarwal, the father of the revisionist
executed
a
deed
of
relinquishment
declaring that the said property was and has
been the absolute and exclusive property of
Sri Kishori Lal Agarwal and the revisionist,
who are the exclusive lessees thereof from
the society.

4. Subsequently, Sri Kishori Lal
Agarwal and the revisionist entered into an
agreement on 19/12/1986 providing that
Wing "A" of the property will be
exclusively developed by Sri Kishori Lal
Agarwal and Wing "B" will be developed
exclusively
by
the
revisionist.
The
revisionist's father Sri Motilal Agarwal
died on 31/12/2007 leaving behind his
wife, Smt Sarojini Agarwal (opposite party
No. 2), son -Sanjay Agarwal (Revisionist),
son Rahul Agarwal (opposite party no.1)
and Smt Pallavi Gupta, daughter (opposite
party No. 3).

5. After the death of Sri Motilal
Agarwal, there was dispute amongst the
family with regard to the distribution of his
assets and more specifically with regard to
the leased property situated at 13,Rana
Pratap Marg, Lucknow. It has been
submitted that Sri Anirudh Mithal was a
friend of revisionist's father and he
intervened to make efforts to amicably
resolve the disputes and differences among
the
family
members.
It
is
on
his
intervention
that
the
award/family
settlement dated 07/05/208 was passed
after several meetings, consultations and
after going through various documents.

6. Opposite Party no.1 filed an
application
under
Section
9
of
the
Arbitration and Conciliation Act, 1996
(hereinafter referred to as "the Act of
1996") in the Court of District Judge,
Lucknow which was rejected by means of
order dated 01/01/2013 against which an
appeal has been preferred before this Court
being First Appeal No. 48 of 2013.

7. The award dated 07/05/2008 was
never challenged before any Court as per
provisions of Section 34 of the Act of 1996,
and subsequently the opposite party No. 1
also filed an application for execution of
the award dated 07/05/2010 which was
registered as Execution Case No. 43 of
2011. The revisionist filed his objections
under Section 47 of the Civil Procedure
Code inter-alia stating that no arbitration
agreement was executed between the
parties and the alleged award was not an
outcome of arbitration proceedings and
therefore could not be executed. He also
submitted that the said award was a nullity
in the eyes of law and cannot be executed
as an arbitration award.

8. The First appeal preferred by
opposite party No. 1 filed against the
rejection of his application under section 9
1 All. Sanjay Agarwal Vs. Rahul Agarwal & Ors.
331
of the Act of 1996 came up for hearing
before this Court on 01/09/2016 on which
date
considering
the
fact
that
the
application for execution was pending
before
the
District
Judge,
wherein
objections under Section 47 of the CPC had
also been filed by the revisionist, were
pending consideration, directed the District
Judge,
Lucknow
to
dispose
of
the
application for execution along with the
objections within a period of 3 months
from the date of communication of the
order.

9. The District Judge by means of the
impugned order dated 30/01/2019 has
rejected the objections preferred by the
revisionist and against the said order the
present revision has been filed. The District
Judge while rejecting the objections filed
by the revisionist relied upon the judgment
of this Court in the case of Larsen and
Toubro
Limited
vs
Maharaji
Educational Trust, (2010)10SCC Online
All 1866 passed in Civil Revision No. 213
of 2010 (decided on 24/09/2010) where it
was held that the "award" passed in the
arbitration proceedings is not a "decree"
within the meaning of Section 2(2) of the
C.P.C and provisions of Section 47 C.P.C
would not be applicable to obstruct the
execution of the award.

10. Assailing the impugned order
dated 30/01/2019 passed by the District
Judge, it has been submitted by Sri Pritish
Kumar, Advocate that according to Section
36 of the Act of 1996 an award is liable to
be enforced in the same manner as if it
were a decree of the Court. He submits that
while
executing
a
decree,
questions
pertaining to objections to execution,
discharge, and satisfaction of a decree have
to be considered by the executing Court
while executing any decree.He submits that
there was no arbitration agreement, nor was
there any claim filed by any of the parties
and even the award does not give any
reasons and consequently it is a nullity and
cannot be executed. He submitted that even
though no appeal was filed under Section
34 of the Act of 1996, still the objections
raised by the revisionist were liable to be
considered at the stage of execution and
relied on the Judgment in the case of
Dharma
Prathisthanam vs
Madhok
Construction (P) Ltd, (2005) 9 SCC 686.

11. He further submitted that the
award passed was a nullity and cannot even
be termed as an award and at best it could
be termed as a family settlement. Further,
the award itself states that it shall be given
legal shape by expert civil lawyers/Income
Tax Consultant and submitted that the said
award would not be legally enforceable as
such. It was further submitted that the
District Judge has not complied with the
order
passed
by
this
Court
dated
01/09/2016, in as much as he has failed to
decide the objections raised by the
revisionist, and he has consequently failed
to exercise jurisdiction vested in him.

12. Sri Sanjay Bhasin, Senior
advocate appearing on behalf of the
respondents has opposed the revision. It
was submitted that a bare perusal of the
award would reveal that the parties had
agreed to the arbitration proceedings held
by Sri Anirudh Mithal and revisionist had
duly participated in the said proceedings,
and vehemently disputed the facts asserted
by the revisionist in with regard to the
validity of the award. It was further
submitted that it was open to the revisionist
to have challenged the validity of the award
under Section 34 of the Act of 1996, but no
such challenge was made by him, and the
award has become final and binding as per
332 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 35/36 of the Act of 1996 and is
liable to be enforced as such. He further
submitted that objections which could have
been raised under section 34 of the Act of
1996 for the challenge of arbitration award
cannot be permitted to be raised as a stage
of execution. He submitted that the
objections raised by the revisionist are
relatable to section 16(6) of the Act of 1996
for which remedy under section 34 of Act
of 1996 has been specifically prescribed
and for the said objections remedy does not
lie under section 47 of the C.P.C, and
consequently submitted that there is no
infirmity in the order passed by the District
Judge Lucknow.

13. It was further stated that in the
present revision, this Court in exercise of
its revisional jurisdiction would only look
into the aspect of the jurisdiction exercised
by the District Judge and would not go into
the merits of the claim and validity of the
award. He further submitted, that the
District Judge has rightly rejected the
objections filed by the revisionist inasmuch
as the executing Court would not have the
same powers as provided for under Section
47 of the CPC while deciding the
objections against execution of an award. It
was submitted that an award attains finality
as per Section 36 of the Act of 1996 and is
liable to be enforced in accordance with the
provisions of CPC in the same manner as if
it were decree of the Court. He submitted
that the distinction between an award and a
decree of Court are evident and apparent
and only because of deeming provision as
contained in section 36 of the Act of 1996
and only for the purposes of execution the
award is treated as a decree. In case
objections under Section 47 of the CPC are
made applicable to execution of an award,
then it will run counter to the statutory
scheme of the Act of 1996. In this regard he
relied upon the judgment of this court in
the case of Larsen and Toubro Limited vs
Maharaji Educational Trust (Supra). It
was further submitted that questions
pertaining to the jurisdiction of the arbitral
tribunal can be raised before the Tribunal
itself as per Section 16 of the Act of 1996,
and the question of jurisdiction could be
raised under Section 34 as per Section
16(6) of the Act of 1996 .He concluded by
stating that the District Judge has rightly
appreciated the controversy in the present
case and there is no the infirmity in his
order rejecting the objections filed under
Section 47 of the CPC.

14. I have heard the counsels for the
parties and perused the record. The
undisputed facts arising in the present case
are that by a registered lease deed the
National Council of Young Men Christian
Association of India executed a lease deed
in respect of property situated at 13 Rana
Pratap Marg, Lucknow in favour of
revisionist and his grandfather Sri Kishori
Lal Agarwal. With regard to the same
property deed of relinquishment was
executed by Sri Motilal Agarwal declaring
that the said property is the absolute and
exclusive property of Sri Kishori Lal
Agarwal and revisionist and it had never
been acquired by the firm M/s Motilal
Agarwal & Co. Subsequently an agreement
was entered into between Sri Kishori Lal
Agarwal and revisionist distributing the
said property amongst themselves and also
with regard to the development work to be
undertaken by each of them. Motilal
Agarwal who was the father of the
revisionist,
died
on
31/12/2007
and
disputes arose between his legal heirs with
regard to the distribution of his assets as
well as the property leased by National
Council
of
Young
Men
Christian
Association of India.
1 All. Sanjay Agarwal Vs. Rahul Agarwal & Ors.
333

15. Subsequent facts in the present
case are disputed, which relate to the
submission of the dispute for arbitration,
and the proceedings held by Sri Anirudh
Mithal who was a friend of revisionist
father. He intervened and made efforts for
amicable settlement of the disputes and
differences among the family members.
Meetings were held between the parties
where the revisionist also participated, and
the final outcome was titled as a Final
award
dated
07/05/2008
which
was
outcome of arbitration between Sarojini
Agarwal, Sanjay Agarwal, Pallavi Gupta
and Rahul Agarwal.

16. The first issue which arises for
determination is the limits and powers of
this Court while deciding a revision
petition, and more specifically as to
whether merely the question of exercise of
jurisdiction by the District Judge can be
looked into, or even the validity of the
award can also be judged by this Court.

17. It is pertinent to understand the
context and legislative intent behind the
enactment of Section 115 of the CPC. The
said Section has been reproduced for
reference hereunder:

"115. Revision 4 (1) The High Court
may call for the record of any case which
has been decided by any Court subordinate
to such High Court and in which no appeal
lies thereto, and if such subordinate Court
appears--

(a) to have exercised a jurisdiction not
vested in it by law, or

(b) to have failed to exercise a
jurisdiction so vested, or

(c) to have acted in the exercise of its
jurisdiction illegally or with material
irregularity, the High Court may make such
order in the case as it thinks fit:

Provided that the High Court shall not,
under this section, vary or reverse any
order made, or any order deciding an issue,
in the course of a suit or other proceeding,
except where the order, been made in
favour of the party applying for revision
would have finally disposed of the suit or
other proceedings.

(2) The High Court shall not, under
this section, vary or reverse any decree or
order against which an appeal lies either to
the High Court or to any Court subordinate
thereto.

(3) A revision shall not operate as a
stay of suit or other proceeding before the
Court except where such suit or other
proceeding is stayed by the High Court.
Explanation.--
In
this
section,
the
expression "any case which has been
decided" includes any order made, or any
order deciding an issue in the course of a
suit or other proceeding.

18. Section 115 of the CPC, deals
with the High Court's power of revision.
Briefly stating, in a case which is not
subject to appeal, the High Court is
empowered to call for the records of the
case decided by the Court below, and if the
Court below has exercised a jurisdiction
vested in it by law, or failed to exercise
jurisdiction vested by law or acted with
material irregularity, etc. in the exercise of
its jurisdiction, the High Court may
interfere.

19. The provision thus takes within its
limited jurisdiction, the irregular exercise
or non-exercise of it, or the illegal
assumption of it. It is not directed against
conclusions of law or fact in which the
question of jurisdiction is not involved. In
other words, it is only in cases where the
subordinate
Court
has
exercised
jurisdiction not vested in it by law, or has
334 INDIAN LAW REPORTS ALLAHABAD SERIES
failed to exercise jurisdiction so vested, or
has acted in the exercise of its jurisdiction
illegally or with material irregularity that
the jurisdiction of the High Court may be
properly invoked.

20. In the case of Major S.S. Khanna
v. Brig. F.J. Dillon, (1964) 4 SCR 409, the
Hon'ble Supreme Court stated that the said
Section
consists
of
two
parts,
first
prescribes
the
condition
in
which
jurisdiction of the High Court arises, i.e.
there is a case decided by the subordinate
Court in which no appeal lies to the Court
of higher jurisdiction, second sets out the
circumstances in which the jurisdiction
may be exercised. If there is no question of
jurisdiction, the concerned decision cannot
be corrected by the High Court in the
exercise of revisional powers. The relevant
paragraphs of Major S.S. Khanna (Supra)
have been reproduced herein:

"6. The jurisdiction of the High Court
to set aside the order in exercise of the
power under Section 115 of the Code of
Civil Procedure is challenged by Khanna
on three grounds:

(i) that the order did not amount to "a
case which has been decided" within the
meaning of Section 115 of the Code of Civil
Procedure;

(ii) that the decree which may be
passed in the suit being subject to appeal to
the High Court; the power of the High
Court was by the express terms of Section
115 excluded; and

(iii) that the order did not fall within
any of the three clauses

(a), (b) and (c) of Section 115.

The validity of the argument turns
upon the true meaning of Section 115 of the
Code of Civil Procedure, which provides:
"The High Court may call for the record of
any case which has been decided by any
Court subordinate to such High Court and
in which no appeal lies thereto, and if such
subordinate Court appears--

(a) to have exercised a jurisdiction not
vested in it by law, or

(b) to have failed to exercise a
jurisdiction so vested, or

(c) to have acted in the exercise of its
jurisdiction illegally or with material
irregularity, the High Court may make such
order in the case as it thinks fit."

21. The primary objective of Section
115 of the CPC, is to prevent subordinate
Courts from acting arbitrarily, capriciously
and illegally or irregularly in the exercise
of their jurisdiction. It clothes the High
Court with the powers to see that the
proceedings of the subordinate Courts are
concluded in accordance with law within
the bounds of their jurisdiction and in
furtherance of justice.

22. The term "jurisdiction‟ has not
been defined in the CPC. The said term has
been defined by the Hon'ble Supreme
Court and various High Courts by way of
judgments. The said term means "the
power of a Court to hear and decide a case
or to pass a certain order‟ and "the right or
authority to apply laws and administer
justice". The expression "jurisdiction" is a
verbal cast of many colors, the adoptive
definition of the same has to be interpreted
subjectively, i.e., depending upon the
nature of the facts and circumstances of
each case.

23. It is a settled principle of law that
the lower Courts have jurisdiction to decide
the case, and in context of the provision of
revision, even if the Court below decides
the case wrongly, they do not exercise their
jurisdiction illegally or with material
irregularity.
1 All. Sanjay Agarwal Vs. Rahul Agarwal & Ors.
335

24. This Court is of the view that
there is no justification for the contention
that the revisional jurisdiction is intended
to authorize the High Court to interfere and
correct gross and palpable errors of the
subordinate Courts, so as to prevent grave
injustice in non-appealable cases and that it
would be difficult to formulate any
standard by which the degree, or error of
the subordinate Courts could be measured.

25. The revisional power, however,
enables the High Court to correct, when
necessary,
the
errors
of
jurisdiction
committed by subordinate Courts and
provides the means to an aggrieved party to
obtain rectification in a non-appealable
order. In other words, for the effective
exercise of its superintending powers,
revisional jurisdiction is conferred upon the
High Court. The said principle has been
reaffirmed by the Hon'ble Apex Court in
the judgment of Manick Chandra Nandy v.
Debdas Nandy, (1986) 1 SCC 512. The
Hon'ble Court in the said judgment had
observed as follows:

"5. We are constrained to observe that
the approach adopted by the High Court in
dealing with the two revisional applications
was one not warranted by law. The High
Court treated these two applications as if
they were first appeals and not applications
invoking its jurisdiction under Section 115
of the Code of Civil Procedure. The nature,
quality and extent of appellate jurisdiction
being exercised in first appeal and of
revisional jurisdiction are very different.
The limits of revisional jurisdiction are
prescribed and its boundaries defined by
Section 115 of the Code of Civil Procedure.
Under that section revisional jurisdiction is
to be exercised by the High Court in a case
in which no appeal lies to it from the
decision of a subordinate court if it appears
to it that the subordinate court has
exercised a jurisdiction not vested in it by
law or has failed to exercise a jurisdiction
vested in it by law or has acted in the
exercise of its jurisdiction illegally or with
material irregularity. The exercise of
revisional jurisdiction is thus confined to
questions of jurisdiction.

While in a first appeal the court is free
to decide all questions of law and fact
which arise in the case, in the exercise of
its revisional jurisdiction the High Court is
not entitled to reexamine or reassess the
evidence on record and substitute its own
findings on facts for those of the
subordinate court"

26. In the backdrop of the aforesaid
enunciation of the aspect of "jurisdiction"
with regard to revisions, we have been
called upon to examine the order dated
30/01/2019 passed by the District Judge
Lucknow. He dealt with the objections
raised by the revisionist regarding that the
"Final award" dated 07/05/2008 was not an
arbitration award but at best a family
settlement/arrangement and was a nullity in
the eyes of law. The District Judge has
rejected the said objections by holding that
Sri Anirudh Mithal was appointed as an
arbitrator by all the parties without any
demur to decide the dispute which arose
between the parties and the revisionist did
not raise any objections whatsoever during
the entire arbitration proceedings before the
arbitrator. A perusal of the award dated
07/05/2008 also reveals that there was a
mutual agreement between Smt Sarojini
Agarwal and 3 children to consult, obtain
advice and guidance in the matter of
distribution of all assets, liabilities and all
matters concerning to and connected or
touching with the estate of late Motilal
Agarwal. He has further recorded that they
all had undertaken to accept without demur
336 INDIAN LAW REPORTS ALLAHABAD SERIES
whatever decision is awarded by the
arbitrator. Facts were also confirmed in
writing in February 2008 by Smt Sarojni
Agarwal and her 3 children. The revisionist
has denied the existence of any arbitration
agreement. A perusal of the revision and
the objections filed by the revisionist
before the executing Court indicate that
none of the letters as mentioned in the
award were ever produced, from which it
could be gathered that there was no
arbitration
agreement.
An
arbitration
agreement need not be a specific document,
but the agreement can be gathered from
various documents, but the intention has to
be unequivocally stated, which is to refer
the dispute for arbitration. The revisionist
has not denied the existence of the letters
submitted to the arbitrator by the respective
parties wherein it has been unequivocally
stated that the dispute may be decided
through arbitration by Sri Anirudh Mithal.
Not only is there no denial with regard to
submission of the dispute for arbitration,
but the revisionist has not produced the
letters sent by him to the arbitrator from
which it could be gathered that there was
no intention to refer the dispute for
arbitration.
Accordingly,
there
is
no
material or evidence to return a finding in
favour of the revisionist or to interfere with
the finding recorded by the District Judge
while rejecting the objections filed by the
revisionist.

27. Even the provision of section 4 of
the Act of 1996 would militate against the
arguments
raised
by
the
revisionist.
According to Section 4 where a party who
knows that any requirements under the
arbitration
agreement
has
not
been
complied with and yet proceed with the
arbitration without stating his objection to
such non-compliance without undue delay
shall be deemed to have waived his right to
so object. The revisionist did not raise any
objections
during
the
arbitration
proceedings despite the fact that he
participated in the same and consequently
cannot be permitted to turn around and
raise the same at such a belated stage. Even
if he was of the firm belief that there is no
arbitration agreement according to the
exchange of letters as mentioned in the
award, it was open for him to have
challenged the award under Section 34 of
the Act of 1996 within the time prescribed.
The respondents are right in stating that
even the statutory scheme of the Act of
1996 clearly states that any objection
relating to jurisdiction of the arbitral
tribunal can be raised before the tribunal
itself, and the award can also be challenged
under Section 34 of the Act of 1996. In not
doing so, provisions of Section 36 of the
Act of 1996 come into operation and the
award is liable to be enforced as such. The
judgment of the Hon'ble Supreme Court in
the case of Dharma Prathisthanam was
delivered
in
2005
interpreting
the
provisions of Arbitration Act, 1940. The
Act of 1940 was replaced by the Arbitration
and Conciliation Act, 1996 wherein Section
4 provided that where any requirement
under the arbitration agreement has not
been complied and yet the person proceed
with the arbitration without stating the
objections to such non-compliance he
would be deemed to have waived his right
to
object. Another
major
distinction
between theArbitration Act, 1940, and the
Act of 1996 is that under the Act of 1940
the Arbitral Award was required to be made
a rule of the Court and a decree, but
Section 36of the Arbitration Act, 1996,
confers the Arbitral Award with a status of
a decree to "be enforced in accordance with
the provisions of the Code of Civil
Procedure, 1908 (5 of 1908) in the same
manner as if it were a decree of the Court".
1 All. Sanjay Agarwal Vs. Rahul Agarwal & Ors.
337
The law has undergone sea change by
introduction
of
Act
of
1996
and
accordingly, it can safely be stated that the
judgment of the Supreme Court in the case
of Dharma Prathisthanam interpreting Act
of 1940 is no longer good law after coming
into force of Act of 1996.4

28. The other argument raised by the
revisionist
was
with
regard
to
the
maintainability of the objections under
Section 47 of the CPC filed against the
application for execution of the award. In
this regard it was submitted that at the stage
of execution all questions relating to the
execution, discharge or satisfaction of the
decree shall be determined by the Court
executing the decree. It was argued that
even the High Court as an interim measure
had passed the order dated 01/09/2016 in
the First Appeal preferred by the opposite
party directing the District Judge to decide
the objections under Section 47 of the CPC,
and by not doing so the District Judge has
committed material irregularity and had not
exercised the jurisdiction vested in him.

29. The applicability of Section 47 of
the CPC have been considered by this court
in the case of Larsen and Toubro Limited
vs Maharaji Educational Trust 2011 (2)
AWC 1682 (All) passed in Civil Revision
No. 213 of 2010 (decided on 24/09/2010)
where it was held:-

"The aforesaid scheme of the Act go to
show that Section 34 of the Act prescribes
the ground under which arbitral award can
be challenged. If no application is made
underSection
34within
the
prescribed
period of limitation or the application is
refused
the
award
becomes
final
underSection 35of the Act and enforceable
in terms ofSection 36.Section 34of the Act
enumerates specific grounds on which an
application for setting aside an award can
be made.

Intention of legislature is a guiding
factor for interpreting the provision of a
Statute and the same is to be gathered from
the words used in various provisions and
the scheme of the Statute. Under 1996 Act,
the grounds of challenge having been
specified
by
the
legislature
by
enactingSection 34of the Act and finality
having been attached underSection 35, the
legislature obviously did not intend to
either enlarge the scope of grounds of
challenge or to provide another opportunity
of challenge after the stage ofSection 34is
over. Thus, the objection to the award on
the grounds enumerated inSection 34of the
Act once adjudicated cannot be allowed to
be raised or re-agitated by permitting to
raise objection during the execution
proceedings underSection 36by pressing
Section 47 CPC in service as the same
would render the provisions ofSection
34and35of the Act virtually redundant.

The use of words "the award shall be
enforced
under
the
Code
of
Civil
Procedure, 1908 in the same manner as if it
were a decree of the Court" insection 36of
the Act would not mean that the provisions
of the Code of Civil procedure with regard
to execution of decree would become
applicable
in
the
execution
of
the
award.Section 36only creates a fiction that
an award would be enforceable as if it were
a decree of the Court within the scope of
Order XXI C. P. C. This enforcement of the
award under Order XXI CPC would not
attract the application of Section 47 CPC
simply by use of the expression "shall be
enforceable
as
a
decree"
inSection
36norSection 36can be read independent of
other provisions contained in the Act itself.
The provisions of the Act are to be
reconciled with each other.Section 36
cannot be read out of context and
338 INDIAN LAW REPORTS ALLAHABAD SERIES
independent of the scheme of the Act.
Reference to another statute does not
attract application of such other statute to
the referring statute unless expressly
provided. A reference in a statute to
another statute cannot be read in a manner
to invite inconsistency in the referring
statute. Any such reference, if made, has to
be interpreted in the context in which the
reference is made so as not to make
inconsistent the provisions of the referring
statute itself. If it brings inconsistency, then
the same is to be avoided. If Section 47
CPC is to be attracted, then the restrictions
provided inSection 34of the Act and finality
to arbitral award by virtue ofSection 35of
the
Act
would
be
redundant.Section
36cannot be interpreted in the manner
inconsistent with the provisions contained
in the other part of the Act. That apart the
finality of the decree under the Code is
reached after the decision under Section 47
C. P. C., if raised. But the legislature in its
wisdom thought it fit to incorporate the
scope similar to Section 47 C. P. C.
inSection 34of the Act in order to bring
finality
before
the
award
becomes
executable. Same procedure cannot be
expected to be incorporated in a statute
twice. Legislature can never be interpreted
to intend repetition. At the same time, the
object of the Act is directed towards speedy
and hazard-free finality with a view to
avoid long drawn proceeding based on
technicalities. Therefore, having regard to
the
provisions
ofSections
13,16,34and35,Section
36cannot
be
interpreted in a manner inconsistent with
any of the provisions of the Act to attract
the provisions contained in the Code in its
entirety. Therefore, while considering the
application filed underSection 36of the Act
for the execution of an award, the Court
cannot overlook the scope and ambit within
which the Court is to execute the award
taking aid of the provisions for execution
contained in the CPC not inconsistent with
the provisions contained in the 1996 Act.
Therefore, in my view, Section 47 CPC
cannot be attracted despite the words "in
the same manner as if it were a decree of
the Court" used inSection 36when the
award is sought to be executed thereunder.

The matter can be viewed from
another angle. Section 47 CPC provides for
questions to be determined by the Court
executing the decree. The said section
reads as under :

"47. Questions to be determined by the
Court executing decree.- (1) All questions
arising between the parties to the suit in
which the decree was passed, or their
representatives,
and
relating
to
the
execution, discharge or satisfaction of the
decree, shall be determined by the Court
executing the decree and not by a separate
suit.

(2)Omitted
by
the
Code
ofCivil
Procedure
(Amendment
Act,
1976,S.
20(w.e.f. 1.2.1977) (3)Where a question
arises as to whether any person is or is not
the representative of a party, such question
shall, for the purposes of this section, be
determined by the Court.

Explanation I.- For the purposes of
this section, a plaintiff whose suit has been
dismissed and a defendant against whom a
suit has been dismissed are parties to the
suit.

Explanation II.- (a) for the purposes of
this section, a purchaser of property at a
sale in execution of a decree shall be
deemed to be a party to the suit in which
the decree is passed; and

(b) all questions relating to the
delivery of possession of such property to
such purchaser or his representative shall
be deemed to be questions relating to the
execution, discharge or satisfaction of the
decree within the meaning of this section."
1 All. Sanjay Agarwal Vs. Rahul Agarwal & Ors.
339

It is, thus, clear that in order to invoke
section 47 CPC, there must be a
decree.Section 2(2) CPC defines the
decree. For a decision or determination to
be a decree, it must necessarily fall within
the fore-corners of the language used in the
definition.Section 2(2) CPC defines decree
to
mean
"formal
expression
of
an
adjudication which, so far as regards the
Court
expressing
it,
conclusively
determines the rights of the parties with
regard to all or any of the matters in
controversy in the suit and may be either
preliminary or final. It shall be deemed to
include the rejection of a plaint and the
determination
of
any
question
withinSection 144, but shall not include -
(a) any adjudication from which an appeal
lies as an appeal from an order, or (b) any
order of dismissal for default."

Explanation. _ A decree is preliminary
when further proceedings have to be taken
before the suit can be completely disposed
of. It is final when such adjudication
completely disposes of the suit. It may be
partly preliminary and partly final.

The use of words ''adjudication' and
''suit' used by Legislature clearly goes to
show that it is only a court which can pass
a decree in a suit commenced by plaint
adjudicating the dispute between the
parties by means of a judgment pronounced
by the Court.