Petitioner not challenged the award under Section 34 of the Arbitration and Conciliation Act, 1996 - could not later at the stage of execution proceedings, raise any objection under Section 47 read with Section 151 of the CPC.

This writ petition filed by the State under Article 227 of the Constitution assailing the order dated 22.9.2012, as passed by the teamed Sub-Judge-I, Patna in Execution Case Nos. 1 of 2010/11 of 2011, whereby the Executing Court rejected the petition of the State of Bihar filed under Section 47 read with Section 151 of the Code of Civil Procedure (hereinafter in short as 'CPC') for dismissal of the execution case filed for enforcement of Arbitral Award, on the ground of lack of jurisdiction of the Arbitrator to decide the matter and pass an award. The primal question to be decided in this writ petition is whether the State having challenged the jurisdiction of the Arbitral Tribunal before the Arbitral Tribunal itself at the stage of reference of dispute to the Arbitral Tribunal and the Arbitral Tribunal having ruled against the State and in favour of its jurisdiction, State not having then challenged the award under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') could, later at the stage of execution proceedings, raise any objection under Section 47 read with Section 151 of the CPC.

In view of the judgments and binding precedent noted above, surely that was impermissible. Having abandoned the remedy under Section 34 of the Act, resort to Section 47 CPC was clearly impermissible, in view of the decision of the Apex Court in the case of Mallikarjun (supra). Having thus forfeited their rights, in view of the judgment of the Apex Court in the case of SBP & Co. (supra), they cannot expect this Court to exercise powers of superintendence under Article 227 to come to their rescue

said by the Apex Court recently in the case of MSP Infrastructure Limited (supra) that common civil law principle would not apply to the special law governing arbitration. Thus, on all counts, the objection on behalf of the writ petitioners State must fail. The learned Sub-Judge rightly rejected the objection petition and the impugned order cannot be interfered with. Accordingly, this writ petition is dismissed. 

IN THE HIGH COURT OF PATNA

CWJC No. 11026 of 2013

Decided On: 21.02.2017

The State of Bihar and Ors. Vs. Surendra Singh

Hon'ble Judges/Coram:

Navaniti Prasad Singh and Vikash Jain, JJ.

Citation: AIR 2017(NOC)1073 PAT