SANJIB BANERJEE,SIDDHARTHA CHATTOPADHYAY,J. - (1.) The appeal is of limited import as it arises out of an order of March 28, 2017 passed in course of execution proceedings when it dawned the appellants, deep into such proceedings, that the arbitral award could not have been executed in this Court.
(2.) The facts are not much in dispute. The appellants herein have suffered an arbitral award of November 27, 2013. It is also not in dispute that prior to the commencement of the arbitral reference, a petition under section 9 of the Arbitration and Conciliation Act, 1996 was carried to the Alipore Court. In view of the command in Section 42 of the said Act, all the subsequent proceedings pertaining to the same arbitration agreement had, per force, to be carried to the same forum. Indeed, the appellants say that the appellants have applied for setting aside the award under Section 34 of the Act before the Alipore Court, though such petition may have been filed at a belated stage and, at any rate, after the execution proceedings were commenced in this Court.
(3.) The problem arises in view of the legal fiction in Section 36 of the said Act. In terms of such provision, an arbitral award is deemed to be a decree for the purpose of its enforcement. However, the provision does not specify which should be regarded as the Court which would be deemed to have passed the decree since the legal fiction in the provision is couched in somewhat vague words in the expression " in the same manner as if it were a decree of the court." The use of the definite article before the word 'court' is somewhat of a misnomer without the provision specifying any particular court.;