Sahidullah Munshi, J. - (1.) Ga 3499 of 2017 has been filed by the petitioner/judgement debtor praying for vacating the order dated 20th September, 2017 as also to pass an order for stay of operation of execution case no.538 of 2016 sine die in which the aforesaid order was passed. By filing this application, the petitioner has pointed out before this Court that since the execution proceeding which has been filed by the award holder cannot be continued in this Court, having no jurisdiction inasmuch as the award debtor has already filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act, 1996) and is pending adjudication before a Court of Patna.
(2.) Mr. Mitra, learned senior counsel appearing for the petitioner in support of GA 3499 of 2017, has submitted that according to the provisions of Section 36 of the aforesaid Act of 1996, once an application under Section 34 has been filed and is pending, award cannot be put into execution. According to him, as per the provisions of the said Act, as it stood before amendment in the year 2015, it is automatic that once an application under Section 34 is filed, the execution should be deemed to be non-est and stay is deemed operative. No prayer for stay was required to be made under the provision of the old Act but after the amendment Act of 2015 came into force, there has been some change in the provision of Section 36. Section 36 as amended is as follows: "Enforcement.- (1) Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section (2), such award shall 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. (2) Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose. (3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing: Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).]."
(3.) According to Mr. Mitra, this Court has to decide whether or not in view of the provision of the amendment Act of 2015, in particular Section 36 thereof, the application under Section 34 which was filed before amendment and is pending before the Court would be affected by such amendment i.e. Section 36(2) of the amended Act. According to Mr. Mitra, amended Act will not be applicable in a proceeding which is pending before the amendment Act came into force. According to him, if the provision of new Act is not applicable to the pending Section 34 proceeding, then this Court cannot have any jurisdiction to continue with the execution proceeding.;