Tarun Agarwala - (1.) -Heard, Shri S. D. Kautilya, the learned counsel for the petitioner and Sri Bakhtiyar Yusuf, the learned counsel for the respondent No. 2.
(2.) THE respondent No. 2 filed an application under Section 36 of the Arbitration and Conciliation Act, 1996 for enforcement of the award. Subsequently, an application under Section 24 of the C.P.C. read with Section 151 of the C.P.C. was filed by the respondents stating therein that the Civil Judge had no jurisdiction to hear the matter under Section 36 of the Arbitration and Conciliation Act, 1996 and that the jurisdiction to decide the matter was with the District Judge, and therefore, the said application may be transferred to the court of competent jurisdiction. THE District Judge, by the impugned order dated 3.10.2008, allowed the application of the respondents, holding that the application under Section 36 of the Act, could only be decided by the court of District Judge and not by the court of Civil Judge (Senior Division). THE petitioner, being aggrieved by the said order, has filed the present writ petition. The learned counsel for the petitioner fairly conceded that the court of Civil Judge had no jurisdiction to entertain the application under Section 36 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act) but submitted that the application under Section 24 of the C.P.C. was not maintainable since the said section was not applicable to proceedings arising under Section 36 of the Arbitration Act. In my opinion, the submission of the learned counsel for the petitioner is bereft of merit. Section 24 of the C.P.C. reads as under : "24. General power of transfer and withdrawal.-(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage- (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or dispose of the same ; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same ; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which (is thereafter to try or dispose of such suit or proceeding) may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For purposes of this section,- (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court ; (b) "proceeding" includes a proceeding for the execution of a decree or order. (4) The Court trying any suit transferred or withdrawn under this Section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it."
(3.) FROM the aforesaid provision, it is clear that a power has been given to transfer any suit, appeal or other proceedings pending before the Court. The word "proceeding" has been explained in sub-clause (b) of sub-clause (3) of Section 24 of the Act to include proceedings for the execution of a decree or order. The question which now arises for the consideration is, whether the application filed under Section 36 of the Arbitration and Conciliation Act, 1996 comes under the category of the word "proceeding". Section 36 of the Arbitration and Conciliation Act, 1996 reads as under : "36. Enforcement.-Where the time for making an application to set aside the arbitral award under Section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.";