Shri Colonizers And Developers Pvt. Ltd. Thru. Director And Another vs Abha Gupta

AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
SPECIAL APPEAL No. - 278 of 2026
Shri Colonizers and Developers Pvt. Ltd. Thru. Director and
another
…..Appellant(s)
Versus
Abha Gupta
…..Respondent(s)
Counsel for Appellant(s) : Rajeev Sharan, Amal Rastogi,
Devesh Bahadur Singh
Counsel for Respondent(s) : Anurag Tyagi,
Along with :
Special Appeal Defective No. 430 of 2026:
Colonizers and Developers Pvt. Ltd. Thru. its Director and
another
1.
Versus
Abha Gupta Thru. Her Power of Attorney Holder Deepak
Khemani
Judgment reserved on:29.07.2026
Judgment delivered on:16.09.2026
Court No. - 1
HON'BLE RAJAN ROY, J.
HON'BLE MANJIVE SHUKLA, J.
(Per: Rajan Roy, J.)
1. Heard Shri Pritish Kumar, learned Senior Counsel assisted
by Shri Rajeev Sharan along with Shri Amal Rastogi, Ms. Anchal
Kushwaha and Shri Devesh Bahadur Singh, learned counsel for

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SPLA No. - 278 of 2026
the appellants and Shri Pankaj Kumar Singh, learned counsel for
the respondent.
2. These are two special appeals under Chapter VIII Rule 5 of
the Allahabad High Court Rules, 1952 challenging two separate
orders dated 12.05.2026 and 11.07.2025 passed in same
proceedings under Section 36 of the Arbitration and Conciliation
Act, 1996 (hereinafter referred to as ‘the Act, 1996’) by a Single
Judge of this Court.
3. Learned counsel for the respondent has raised an objection
about the very maintainability of these special appeals in view of
Section 5 and 37 and other provisions of the Act, 1996 and the
judgment of Hon’ble the Supreme Court in this regard. He has
placed reliance upon decisions of the Supreme Court reported in
(2011) 8 SCC 333; Fuerst Day Lawson Limited Vs. Jindal
Exports Limited , 2025 SCC OnLine SC 2502; Bharat Kantilal
Dalal (Dead) through LR. Vs. Chetan Surendra Dalal and Ors. ,
(2017) 14 SCC 225; Union of India Vs. Simplex Infrastructures
Limited , 2026 SCC OnLine SC 1001; Madhya Pradesh Road
Development Corporation Limited Vs. Jabalpur Corridor
Private Limited , (2020) 10 SCC 1; Government of India Vs.
Vedanta Limited and Ors. , (2006) 13 SCC 322; Paramjeet
Singh Patheja Vs. ICDS Ltd. A Division Bench Judgment of
Himanchal Pradesh High Court rendered in LPA No. 58 of 2017;
M/s Utkarsh Apparels and Anr. Vs. M/s Vinnsome Textiles
Industries Ltd. decided on 02.08.2017 has also been relied.

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SPLA No. - 278 of 2026
4. The respondent’s counsel Shri Pankaj Kumar Singh also
relied upon decisions reported in 1961 SCC OnLine SC 344;
Union of India Vs. Mohindra Supply Co. , (2024) 6 SCC 1;
Interplay Between Arbitration Agreements under Arbitration
and Conciliation Act, 1996 and Stamp Act, 1899 , (2017) 2 SCC
37; Mahanagar Telephone Nigam Limited Vs. Applied
Electronics Limited , (2013) 7 Bombay CR 264; Masusmi Sa
Investment Llc Vs. Keystone Realtors Private Limited and
Ors. , 1991 (1) SCC 193; Sushil Kumar Mehta Vs. Govind Ram
Bohra , (2016) 14 SCC 49; Satyendra Kumar and Ors. Vs. Raj
Nath Dubey and Ors. , 2011 SCC OnLine Bombay 1379; Jet
Airways (India) Limited Vs. Mr. Subrata Roy Sahara and Ors. ,
(2022) 1 SCC 209; Amazon.Com N V Investment Holdings LLC
Vs. Future Retail Limited and Ors.
5. Shri Pritish Kumar, learned Senior Counsel appearing for
the appellants on the other hand contended that the question of
maintainability of an appeal arising out of proceedings under
Section 36 of the Act, 1996 was considered in the earlier round of
litigation between the same parties arising out of the same
proceedings under Section 36 of the Act, 1996 in Special Appeal
No. 394 of 2025 and this Court held the appeal to be maintainable
which was not put to challenge by respondent, therefore,
according to him, this plea was not open to the respondent in a
subsequent special appeal arising from the same proceedings in
view of the bar of res judicata/ constructive res judicata. In support

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of the plea of bar of res judicata/ constructive res judicata the
appellant’s counsel relied upon the judgments reported in 2018
(16) SCC 228; Canra Bank Vs. N.G. Subbaraya Setty and AIR
1953 SC 65; Mohanlal Goenka Vs. Benoy Krishna Mukherjee.
Reliance was also placed upon another judgment reported in
(2002) 5 SCC 510; ITI Limited Vs. Siemens Public
Communications Network Ltd. , (2022) 9 SCC 225; Jamia
Masjid Vs. Sri K.V. Rudrappa (Since Dead) by Legal
Representatives and Ors.
6. In support of his submissions regarding maintainability of
the special appeals reliance was also placed by Shri Pritish
Kumar, learned Senior Counsel upon the judgments of the
Supreme Court of India reported in (2004) 11 SCC 672; P.S.
Sathappan Vs. Andhra Bank Ltd. and 2002 SCC OnLine SC
599; ITI Limited Vs. Siemens Public Communications
Network Ltd.
7. In the context of maintainability of the appeals Shri Pritish
Kumar, learned Senior Counsel appearing for the appellants also
contended that impugned order is not an order made under the
Arbitration and Conciliation Act, 1996. In this regard he invited our
attention to Section 32 of the Act, 1996 to submit that the
arbitration proceedings stand concluded /terminated by rendering
of the final arbitral award, therefore, in any proceedings thereafter
such as under Section 36 of the Act, 1996, if an order is passed, it
can not be treated as an order in the arbitral proceedings so as to

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attract the provisions of Arbitration and Conciliation Act, 1996.
Even in this regard he invited our attention to Section 36 to
contend that such an award is to be enforced in accordance with
the provisions of the Code of Civil Procedure in the same manner,
as if, it were a decree of the Court. He submitted that the award is
to be treated as a decree of the Court and accordingly Order 21
CPC applies for execution of the award. The execution takes
place under the aforesaid provisions of CPC and not under the
Act, 1996. According to him, there is no statute which excludes an
intra Court appeal against such an order. In this very context he
relied upon the judgments of the Supreme Court of India reported
in (2018) 3 SCC 622; Sundram Finance Limited Vs. Abdul
Samad and Anr. and AIR 2017 SC 3756; Punjab State Civil
Supplies Corporation Ltd. Anr. Vs. M/s Atwal Rice and
General Mills to contend that the Code of Civil Procedure was
applicable to execution of arbitral award and the award is a
decree and is to be executed as such, therefore, execution is not
under the Act, 1996 but under Order XXI CPC.
8. It was also his contention that res judicata operates in
personam, therefore, correctness of earlier judgment is
immaterial. He placed reliance upon the judgment reported in
2026 INSC 116; Eminent Colonizers Pvt. Ltd. Vs. Rajasthan
and the case of Mohanlal Goenka (supra). He also referred to
the judgments reported in AIR 1966 SC 1061; State of West
Bengal Vs. Hemant Kumar Bhattacharjee , AIR 1960 SC 941;

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SPLA No. - 278 of 2026
Satyadhyan Ghosal Vs. Deorajin Debi , (1976) 4 SCC 66; Y.B.
Patil Vs. Y. L. Patil , (2005) 1 SCC 787; Bhanu Kumar Jain Vs.
Archana Kumar to contend that the res judicata and issue
estoppel apply at different stages of the same proceedings and
that even an erroneous decision on a question of law operates as
res judicata between the parties.
9. It was also his submission that the Act, 1996 is silent as to
the availability of any remedy against an order passed under
Section 36 of the Act, 1996, therefore, the general rules or
procedure applicable to the High Court before which such
application under Section 36 is maintainable would apply and as
under Chapter VIII Rule 5 of the Allahabad High Court Rules,
1952 an intra court appeal is maintainable against the judgment of
learned Single Judge and the case at hand does not fall in any of
the exclusion clauses mentioned therein, therefore, the appeal is
maintainable just as in the earlier round of litigation between the
parties it was held to be maintainable. In this regard he relied
upon decisions reported in AIR 1953 SC 357; National Sewing
Thread Co. Vs. James Chadwick and Bros. , (2003) 3 SCC 309;
Subal Paul Vs. Malina Paul , (2002) 3 SCC 705; Sharda Devi
Vs. State of Bihar, (1998) 1 SCC 500 ; Vinita M. Khanolkar Vs.
Pragna M. Pai and (2002) 5 SCC 510; ITI Limited Vs. Siemens
Public Communications Network Ltd. He also relied upon a
decision of Delhi High Court reported in 2023 DHC 3426 DB;
Resilient Innovations (P) Ltd. Vs. Phonepe (P) Ltd.

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SPLA No. - 278 of 2026
10. The learned counsel for the respondent responded by
submitting that there is no question of res judicata or constructive
res judicata on a point of jurisdiction and pure point of law. The
fact that the earlier judgment was not challenged by the
respondent would only mean that the said judgment especially its
operative part has attained finality on points of merit involved
therein but it does not mean that the point of lack of jurisdiction in
this Court to entertain a special appeal under Chapter VIII Rule 5
of the Allahabad High Court Rules, 1952 and the point of law
involved in the this regard, can not be raised in these subsequent
appeals.
11. First and foremost we are required to consider the bar of res
judicata/ constructive res judicata as argued by Shri Pritish
Kumar, learned Senior Counsel appearing for the appellants. In
this context, we may point out that this is not a case which
involves an objection regarding lack of territorial jurisdiction but
the objection raised by the respondent is with regard to the very
maintainability of these appeals under Chapter VIII Rule 5 of the
Allahabad High Court Rules, 1952, meaning thereby, the forum
itself is not available and the appeal itself does not lie. In this
context we may refer to Para 5 of the very decision cited by the
learned counsel for the appellants i.e. in the case of Canara Bank
(supra) which reads as under:-
“ 5. Res judicata is, thus, a doctrine of
fundamental importance in our legal system,

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SPLA No. - 278 of 2026
though it is stated to belong to the realm of
procedural law, being statutorily embodied in
Section 11 of the Code of Civil Procedure, 1908.
However, it is not a mere technical doctrine, but it
is fundamental in our legal system that there be
an end to all litigation, this being the public policy
of Indian law. The obverse side of this doctrine is
that, when applicable, if it is not given full effect to,
an abuse of process of the court takes place.
However, there are certain notable exceptions to
the application of the doctrine. One well-known
exception is that the doctrine cannot impart finality
to an erroneous decision on the jurisdiction of a
court. Likewise, an erroneous judgment on a
question of law, which sanctions something that is
illegal, also cannot be allowed to operate as res
judicata. This case is concerned with the
application of the last mentioned exception to the
rule of res judicata…... ”
12. We may also fruitfully refer to Para 34 of the same report,
wherein, the law on the subject of res judicata/ constructive res
judicata has been summarized by the Supreme Court. It reads as
under:-
“ 34. Given the conspectus of authorities that have
been referred to by us hereinabove, the law on the
subject may be stated as follows:
34.1. The general rule is that all issues that arise
directly and substantially in a former suit or proceeding
between the same parties are res judicata in a
subsequent suit or proceeding between the same
parties. These would include issues of fact, mixed
questions of fact and law, and issues of law.

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34.2. To this general proposition of law, there are
certain exceptions when it comes to issues of law:
34.2.1. Where an issue of law decided between the
same parties in a former suit or proceeding relates to
the jurisdiction of the court, an erroneous decision in
the former suit or proceeding is not res judicata in a
subsequent suit or proceeding between the same
parties, even where the issue raised in the second suit
or proceeding is directly and substantially the same as
that raised in the former suit or proceeding. This follows
from a reading of Section 11 of the Code of Civil
Procedure itself, for the Court which decides the suit
has to be a court competent to try such suit. When read
with Explanation I to Section 11, it is obvious that both
the former as well as the subsequent suit need to be
decided in courts competent to try such suits, for the
“former suit” can be a suit instituted after the first suit,
but which has been decided prior to the suit which was
instituted earlier. An erroneous decision as to the
jurisdiction of a court cannot clothe that court with
jurisdiction where it has none. Obviously, a civil court
cannot send a person to jail for an offence committed
under the Penal Code. If it does so, such a judgment
would not bind a Magistrate and/or Sessions Court in a
subsequent proceeding between the same parties,
where the Magistrate sentences the same person for
the same offence under the Penal Code. Equally, a civil
court cannot decide a suit between a landlord and a
tenant arising out of the rights claimed under a Rent
Act, where the Rent Act clothes a special court with
jurisdiction to decide such suits. As an example, under
Section 28 of the Bombay Rent Act, 1947, the Small
Cause Court has exclusive jurisdiction to hear and
decide proceedings between a landlord and a tenant in
respect of rights which arise out of the Bombay Rent

10
SPLA No. - 278 of 2026
Act, and no other court has jurisdiction to embark upon
the same. In this case, even though the civil court, in
the absence of the statutory bar created by the Rent
Act, would have jurisdiction to decide such suits, it is
the statutory bar created by the Rent Act that must be
given effect to as a matter of public policy. [See, Natraj
Studios (P) Ltd. v. Navrang Studios at SCR p. 482]. An
erroneous decision clothing the civil court with
jurisdiction to embark upon a suit filed by a landlord
against a tenant, in respect of rights claimed under the
Bombay Rent Act, would, therefore, not operate as res
judicata in a subsequent suit filed before the Small
Cause Court between the same parties in respect of
the same matter directly and substantially in issue in
the former suit.
34.2.2. An issue of law which arises between the same
parties in a subsequent suit or proceeding is not res
judicata if, by an erroneous decision given on a
statutory prohibition in the former suit or proceeding,
the statutory prohibition is not given effect to. This is
despite the fact that the matter in issue between the
parties may be the same as that directly and
substantially in issue in the previous suit or proceeding.
This is for the reason that in such cases, the rights of
the parties are not the only matter for consideration (as
is the case of an erroneous interpretation of a statute
inter partes), as the public policy contained in the
statutory prohibition cannot be set at naught. This is for
the same reason as that contained in matters which
pertain to issues of law that raise jurisdictional
questions. We have seen how, in Natraj Studios, it is
the public policy of the statutory prohibition contained in
Section 28 of the Bombay Rent Act that has to be given
effect to. Likewise, the public policy contained in other
statutory prohibitions, which need not necessarily go to

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SPLA No. - 278 of 2026
jurisdiction of a court, must equally be given effect to,
as otherwise special principles of law are fastened
upon parties when special considerations relating to
public policy mandate that this cannot be done. ”
13. The above quoted paragraphs of Canara Bank (supra)
leave no doubt that there is no question of res judicata/
constructive res judicata on the issue of jurisdiction and point of
law as is involved in these cases. The objection raised by the
respondent in these appeals was not raised in the earlier round of
litigation which does not mean that it can not be raised in these
appeals, as, the fundamental issue of jurisdiction of this Court to
entertain such an appeal under the Rules of the Court, 1952 is
involved which is not only a question of jurisdiction but also purely
a point of law. The legal position is settled that even consent can
not confer jurisdiction upon a Court. The earlier decision can not
be applied on the pretext of the principle of res judicata/
constructive res judicata to vest this Court with jurisdiction if it
otherwise does not have in law. It is a settled exception to the
application of the principle of res judicata/ constructive res
judicata that it does not apply where the point of jurisdiction and/or
point of law, is involved. This is even if this issue arises at
subsequent stage of the same proceedings.
14. No doubt even an incorrect decision is binding between the
parties but an incorrect decision can not be equated with a
decision rendered without jurisdiction as was observed by the
Supreme Court in the case of Hemant Kumar Bhattacharjee

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SPLA No. - 278 of 2026
(supra). The question herein is of inherent lack of jurisdiction to
entertain these appeals. The answer to this question is not
dependent on questions of fact nor on mixed questions of fact and
law. It is a purely legal issue touching upon the very jurisdiction of
this Court to entertain these appeals. The issue of jurisdiction is
not related to the rights of the parties on merits. For application of
the principle of res judiciata/ constructive res judicata one of the
prerequisites or conditions is that the Court which passed the
earlier order whether in a former suit or in an earlier stage of the
same suit must be a Court competent in that regard (Sheodan
Singh Vs. Smt. Daryao Kunwar reported in AIR 196 SC 1332). It
is also not an issue involving a question of law touching upon the
rights of the parties rather it is a question of jurisdiction unrelated
to the rights of the parties whether on facts or on law. In this
regard we may also refer to a decision of Hon’ble the Supreme
Court in the case of Smt. Isabella Johnson Vs. M.A. Susai
reported in (1991) 1 SCC 494 , wherein the judgment in Mathura
Prasad Bajoo Jaiswal and Ors. Vs. Dossibai N.B. Jeejeebhoy
reported in (1970) 3 SCR 830 was relied and in Para nos. 5 and 6
it was held as under:-
“ 5. Learned counsel for the appellant submitted
that the learned Judge of the High Court was in
error, as the earlier decisions of the Rent
Controller to the effect that it was the City Civil
Court and not the Rent Controller who had the
jurisdiction to entertain the suit for eviction filed by

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SPLA No. - 278 of 2026
the appellant against the respondent, constituted
res judicata between the parties on the question of
jurisdiction. It was submitted by him that, even if
that decision was wrong, the issue of jurisdiction
was finally decided between the parties and that
decision was that it was the Civil Court and not the
Rent Controller that had the jurisdiction to
entertain and dispose of the suit for eviction. He
further submitted that the respondent could not be
permitted to take inconsistent pleas as he was
barred by the principles of estoppel from taking up
the plea before the Civil Court that it was the Rent
Controller who had the exclusive jurisdiction to
entertain the suit. He placed reliance on a decision
rendered by a Division Bench comprising two
learned Judges of this Court in Avtar Singh v. Jagjit
Singh which took the view that the Civil Court's
decision regarding lack of jurisdiction will operate
as res judicata in a subsequent suit. In that case
the Civil Court declined jurisdiction. The Civil Court
took the view that it had no jurisdiction to try the
suit in question and directed the return of the plaint
for representation to the appropriate Revenue
Court. When the claim was filed in the Revenue
Court, the court took the view that it had no
jurisdiction to try the claim. Thereupon, a suit was
again instituted in the Civil Court for the same
relief. This suit failed throughout on the ground of
res judicata. The High Court affirmed the dismissal
and the Division Bench of this Court took the view
that the High Court was right in taking the view that
the principles of res judicata were applicable to the
issue of jurisdiction. In our opinion, the contention

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SPLA No. - 278 of 2026
of learned counsel for the appellant cannot be
upheld. We find that in Mathura Prasad Bajoo
Jaiswal v. Dossibai N.B. Jeejeebhoy a bench
comprising three learned Judges of this Court has
taken the view that a decision on the question of
jurisdiction of the court or a pure question of law
unrelated to the right of the parties to a previous
suit, is not res judicata in the subsequent suit. The
court observed: (SCC p. 619, para 11)
“It is true that in determining the application
of the rule of res judicata the court is not
concerned with the correctness or otherwise
of the earlier judgment. The matter in issue,
if it is one purely of fact, decided in the
earlier proceeding by a competent court
must in a subsequent litigation between the
same parties be regarded as finally decided
and cannot be reopened. A mixed question
of law and fact determined in the earlier
proceeding between the same parties may
not, for the same reason, be questioned in a
subsequent proceeding between the same
parties. But, where the decision is on a
question of law, i.e. the interpretation of a
statute, it will be res judicata in a subsequent
proceeding between the same parties where
the cause of action is the same, for the
expression “the matter in issue” in Section
11, Code of Civil Procedure means the right
litigated between the parties, i.e., the facts
on which the right is claimed or denied and
the law applicable to the determination of
that issue. Where, however, the question is

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SPLA No. - 278 of 2026
one purely of law and it relates to the
jurisdiction of the court or a decision of the
court sanctioning something which is illegal,
by resort to the rule of res judicata a party
affected by the decision will not be precluded
from challenging the validity of that order
under the rule of res judicata, for a rule of
procedure cannot supersede the law of the
land.”
The same view has been reiterated by a bench 6.
comprising three learned Judges of this Court in
Sushil Kumar Mehta v. Gobind Ram Bohra. We find
that the decision of three learned Judges of this
Court in Mathura Prasad Bajoo Jaiswal v. Dossibai
N.B. Jeejeebhoy has not been noticed at all by the
Division Bench comprising two learned Judges of
this Court which delivered the judgment in Avtar
Singh v. Jagjit Singh and hence, to the extent, that
the judgment in Avtar Singh case takes the view
that the principle of res judicata is applicable to an
erroneous decision on jurisdiction, it cannot be
regarded as good law. In our opinion a court which
has no jurisdiction in law cannot be conferred with
the jurisdiction by applying principles of res
judicata. It is well settled that there can be no
estoppel on a pure question of law and in this case
the question of jurisdiction is a pure question of
law.”
15. The case of Mohanlal Goenka (supra) relied by Shri Pritish
Kumar, learned Senior was not one of inherent lack of jurisdiction
but one where the decree passed by the Calcutta High Court on
its original side was transferred for execution to the Court of sub-

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SPLA No. - 278 of 2026
ordinate Judge Asansol with proper certified copy of the decree or
order of transmission. The execution application was dismissed
for default and a certificate was sent under Section 41 CPC
stating that the execution case was dismissed for default without
transmitting the decree or covering letter sent by the High Court.
The Decree Holder again applied for execution. It was accordingly
executed. Then, an application to set- aside the sale was made
under Order 21 Rule 90 CPC on the ground that the decree is a
nullity and Court had no jurisdiction to execute the decree. While
negating the contention it was held that since decree sent was not
transmitted it would be regarded as a fresh application for
execution and therefore, executing Court had jurisdiction and the
decree was not a nullity. It was not a case of inherent lack of
jurisdiction as has also been observed in a subsequent decision
reported in 1991 (1) SCC 193 (Para 25); Sushil Kumar Mehta
Vs. Govind Ram Bohra. The facts of the case in Mohanlal
Goenka’s case (supra) were different to the case at hand and the
issue involved herein.
16. We may even at the cost of repetition point out that the plea
which has been raised herein by the respondent based on Section
5, 37 and other provisions of the Act, 1996 and the decisions
relied upon by them were not raised in the earlier round of
litigation and therefore, they were not considered. This Court only
considered the provision of Chapter VIII Rule 5 of the Allahabad
High Court Rules, 1952, therefore, there was no consideration of

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these issues in the earlier round of litigation, though, the point of
jurisdiction was decided albeit only after going through the
provisions of Chapter VIII Rule 5 of the Rules, 1952 and not the
provisions of the Act, 1996 nor the decisions on which reliance
has been placed now by the respondent’s counsel.
17. In view of the above discussion on the question of
application of principle of res judicata/ constructive res judiciata
and the precedents cited by us, we hold that in the event this
Court finds that it lacks inherent jurisdiction to hear these appeals,
then, merely because of an erroneous decision having been
passed earlier in a special appeal between the parties, even if
arising out of same proceedings, on a pure point of law and point
of jurisdiction unrelated to the rights of the parties, it would not bar
the respondent from raising such plea in these appeals nor would
it prevent the Court from deciding it.
18. We now come to the question of maintainability of these
appeals i.e. the issue of jurisdiction. In this context we may refer
to a decision of Supreme Court of India rendered in the case of
Fuerst Day Lawson Limited (supra) , wherein the question as to
whether the Act, 1996 is a self-contained Code, if so, whether a
Letter Patent Appeal in the High Court would be maintainable or
not, came up for consideration, albeit, in the context of a foreign
award which is governed by Part -II of the Act, 1996. Para 3 of the
said judgment is relevant in this regard. It reads as under:-

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SPLA No. - 278 of 2026
“ 3. A correct answer to both the questions would
depend upon how the 1996 Act is to be viewed.
Do the provisions of the 1996 Act constitute a
complete code for matters arising out of an
arbitration proceeding, the making of the award
and the enforcement of the award? If the answer
to the question is in the affirmative then,
obviously, all other jurisdictions, including the
letters patent jurisdiction of the High Court would
stand excluded but in case the answer is in the
negative then, of course, the contention of Mr.
Sundaram must be accepted.”
19. An issue arose in the said case as to the applicability of the
decision of a Four Judges Bench of the Supreme Court of India in
the case of Union of India Vs. Mohindra Supply Co. reported in
AIR 1962 SC 256, wherein the provisions of Section 39 of the
Arbitration Act, 1940 were considered and with reference to Sub-
section 2 thereof it was held that a Letter Patent Appeal would not
lie. In this context, the observations of the Supreme Court in the
case of Fuerst Day Lawson Limited (supra) in Paragraphs 38,
39 and the contentions of the rival parties before the Supreme
Court as noticed in Para 42, 43, as also the subsequent
observations in Para 52, are relevant. They are as under:-
“ 38. In Mohindra Supply Co. [AIR 1962 SC 256 :
(1962) 3 SCR 497] , a Bench of four Judges of
this Court held that a letters patent appeal
against an order passed by a Single Judge of
the High Court on an appeal under Section 39(1)
of the 1940 Act was barred in terms of sub-

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section (2) of Section 39. This decision is based
on the bar against further appeals as contained
in sub-section (2) of Section 39 of the 1940 Act
and, therefore, it may not have a direct bearing
on the question presently under consideration.
39. More to the point are two later decisions. In
Gourangalal Chatterjee [(1993) 3 SCC 1] , a
Bench of two Judges of this Court held that an
order, against which no appeal would lie under
Section 39(1) of the 1940 Act, could not be
taken in appeal before the Division Bench of the
High Court under its Letters Patent. The same
view was reaffirmed by a Bench of three Judges
of this Court in Aradhana Trading Co. [(2002) 4
SCC 447]
40… ……….
41… ………..
42. Mr Sundaram submitted that Section 50,
unlike Section 39 of the previous Act and
Section 37 of the current Act does not have the
words “(and from no others)” and that, according
to him, made all the difference. He contended
that the omission of the words in parenthesis
was significant and it clearly pointed out that
unlike Section 37, even though an order was not
appealable under Section 50, it would be subject
to appeal under the Letters Patent of the High
Court. At any event the decisions rendered
under Section 39 of the 1940 Act would have no
application in a case relating to Section 50 of the
1996 Act.

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43. Mr Dave, in reply submitted that the words
“(and from no others)” occurring in Section 39 of
the 1940 Act and Section 37 of the 1996 Act
were actually superfluous and seen, thus, there
would be no material difference between the
provisions of Section 39 of the 1940 Act or
Section 37 of the 1996 Act and Section 50 of the
1996 Act and all the decisions rendered on
Section 39 of the 1940 Act will apply with full
force to cases arising under Section 50 of the
1996 Act.
44… …………..
45… …………..
46… ………….
47… ………….
48……………..
49 ……………..
50……………..
51 ……………..
52. Having regard to the grammatical use of
brackets or parentheses, if the words “(and from
no others)” occurring in Section 39 of the 1940
Act or Section 37 of the 1996 Act are viewed as
“an explanation or afterthought” or extra
information separate from the main context,
then, there may be some substance in Mr
Dave's submission that the words in parenthesis
are surplusage and in essence the provisions of
Section 39 of the 1940 Act or Section 37 of the
1996 Act are the same as Section 50 of the
1996 Act. Section 39 of the 1940 Act says no

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SPLA No. - 278 of 2026
more and no less than what is stipulated in
Section 50 of the 1996 Act. But there may be a
different reason to contend that Section 39 of
the 1940 Act or its equivalent Section 37 of the
1996 Act are fundamentally different from
Section 50 of the 1996 Act and hence, the
decisions rendered under Section 39 of the 1940
Act may not have any application to the facts
arising under Section 50 of the 1996 Act. But for
that we need to take a look at the basic scheme
of the 1996 Act and its relevant provisions.”
20. Ultimately, the Supreme Court of India considered the
scheme of the Act, 1996 and the nature of the character of the
Act, 1996 which was a self-contained and exhaustive Code and
opined that a Letter Patents Appeal would not lie. In this regard
reliance was placed by the Supreme Court upon the earlier
decision in Mohindra Supply Co.’s case (supra) , wherein it had
been held that the Act, 1940 was a self-contained and exhaustive
Code. We may in this regard refer to Para 88 to 91 of the report in
Fuerst Day Lawson Limited (supra). They are as under:-
“ 88. Mohindra Supply Co. [AIR 1962 SC 256 :
(1962) 3 SCR 497] was last referred in a Constitution
Bench decision of this Court in P.S. Sathappan
[(2004) 11 SCC 672] , and the way the Constitution
Bench understood and interpreted Mohindra Supply
Co. [AIR 1962 SC 256 : (1962) 3 SCR 497] would be
clear from the following para 10 of the judgment: (P.S.

22
SPLA No. - 278 of 2026
Sathappan case [(2004) 11 SCC 672] , SCC pp. 689-
90)
“10. … The provisions in the Letters Patent
providing for appeal, insofar as they related to
orders passed in arbitration proceedings, were
held to be subject to the provisions of Sections
39(1) and (2) of the Arbitration Act, as the same
is a self-contained code relating to arbitration.”
(emphasis supplied)
89. It is, thus, to be seen that Arbitration Act, 1940,
from its inception and right through to 2004 (in P.S.
Sathappan [(2004) 11 SCC 672] ) was held to be a
self-contained code. Now, if the Arbitration Act, 1940
was held to be a self-contained code, on matters
pertaining to arbitration, the Arbitration and
Conciliation Act, 1996, which consolidates, amends
and designs the law relating to arbitration to bring it,
as much as possible, in harmony with the U NCITRAL
Model must be held only to be more so. Once it is
held that the Arbitration Act is a self-contained code
and exhaustive, then it must also be held, using the
lucid expression of Tulzapurkar, J., that it carries with
it “a negative import that only such acts as are
mentioned in the Act are permissible to be done and
acts or things not mentioned therein are not
permissible to be done”. In other words, a letters

23
SPLA No. - 278 of 2026
patent appeal would be excluded by the application of
one of the general principles that where the special
Act sets out a self-contained code the applicability of
the general law procedure would be impliedly
excluded.
90. We, thus, arrive at the conclusion regarding the
exclusion of a letters patent appeal in two different
ways; one, so to say, on a micro basis by examining
the scheme devised by Sections 49 and 50 of the
1996 Act and the radical change that it brings about in
the earlier provision of appeal under Section 6 of the
1961 Act and the other on a macro basis by taking
into account the nature and character of the 1996 Act
as a self-contained and exhaustive code in itself.
91. In light of the discussions made above, it must be
held that no letters patent appeal will lie against an
order which is not appealable under Section 50 of the
Arbitration and Conciliation Act, 1996.
”
21. Much emphasis was led by the learned Senior Counsel
appearing for the Appellants Shri Pritish Kumar that Fuerst Day
Lawson Limited (supra) was a case pertaining to a foreign
award referable to Part II of the Act, 1996 but for the reasons
discussed in the said decision this by itself can not be a ground
for not applying the law laid down therein to the facts and issues
involved in these cases pertaining to a domestic award, for the
reason, the Supreme Court both in Mohindra Supply Co. (supra)

24
SPLA No. - 278 of 2026
and Fuerst Day Lawson Limited (supra) have held that the
earlier Act, 1940 and the existing Act, 1996 are self-contained and
exhaustive Code and based on the said line of reasoning also it
has been held that a Latter Patent Appeal would not lie. We may
further add that in fact the language used in Section 37 of the Act,
1996 expressly excludes an appeal other than the one mentioned
therein and therefore, in that sense Section 37 imposes an explicit
bar vis-a-vis the provisions contained in Section 50 which were
considered in the case of Fuerst Day Lawson Limited (supra),
and as in spite of it the Supreme Court elucidated the law as
regards maintainability of Letter Patent Appeal as aforesaid,
therefore, the ratio contained therein will apply with all the more
vigour to the case at hand which is governed by Section 37 of the
Act, 1996 as the provision involved herein i.e. Section 37 is
stricter and more explicit than the one which was considered in
Fuerst Day Lawson Limited (supra).
22. As the case at hand pertains to a domestic award, Part- I of
the Act, 1996 applies we now consider Section 5 thereof, which
reads as under:-
“ 5. Extent of judicial intervention.- Notwithstanding
anything contained in any other law for the time
being in force, in matters governed by this Part, no
judicial authority shall intervene except where so
provided in this Part.”

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23. In this very context we may refer to Section 37 of the Act,
1996 which is contained in Part- I of the Act, 1996 which reads as
under:-
“ 37. Appealable orders. – (1) [Notwithstanding anything
contained in any other law for the time being in force, an
appeal] shall lie from the following orders ( and from no
others ) to the Court authorised by law to hear appeals
from original decrees of the Court passing the order,
namely:-
(a) refusing to refer the parties to arbitration
under section 8;
(b) granting or refusing to grant any measure
under section 9;
(c) setting aside or refusing to set aside an
arbitral award under section 34.]
(2) An appeal shall also lie to a Court from an order of
the arbitral tribunal -
(a) accepting the plea referred to in sub-section
(2) or sub-section (3) of section 16; or
(b) granting or refusing to grant an interim
measure under section 17.
(3) No second appeal shall lie from an order passed
in appeal under this section, but nothing in this
section shall affect or take away any right to appeal
to the Supreme Court. ”
24. On a bare reading of Section 37(1) of the Act, 1996 it is
evident that notwithstanding anything contained in any other
law for the time being in force , an appeal shall lie from the
orders mentioned therein and from no other orders to the Court
authorised by law to hear appeals from original decrees of the

26
SPLA No. - 278 of 2026
Court passing the order. Now the orders referred therein against
which an appeal would lie under Section 37 of the Act, 1996 relate
to Section 8, Section 9, Section 34, Section 16 and Section 17.
There is no reference to any order passed under Section 36 in
Section 37 of the Act, 1996, meaning thereby, no appeal is
envisaged against an order passed under Section 36 under
Section 37 of the Act, 1996. Not only this, the use of the words
-“ and from no other orders”, [in Section 37(1)] leaves no doubt
about the intention of the Legislature that an appeal shall lie only
from such orders as are mentioned therein and from no others.
This is further qualified by the opening words to the effect-
“notwithstanding anything contained in any other law for the
time being in force” , meaning thereby, Section 37 explicitly and
in no certain terms make it clear that except for the orders
mentioned therein none other would be appealable. When Section
37 is read with Section 5 the irresistible conclusion, especially in
view of the settled legal position that the Act, 1996 is a complete
and exhaustive code in itself prescribing specific remedies and
not only this but also explicitly excluding any other remedy not
prescribed under the Act, 1996 especially in respect of the
provision contained in Part– I, is that an appeal under Chapter VIII
Rule 5 of the Allahabad High Court Rules, 1952 against an order
passed under Section 36, if entertained, would be against the
grain of the Act, 1996, especially, Section 5 read with Section 37
thereof.

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25. These aspects were not considered in the earlier appeal
between the parties bearing No. 394 of 2025 decided on
09.10.2025. We have already observed based on binding
precedents that an erroneous decision between the same parties
on point of jurisdiction or pure question of law does not attract the
bar of res judicata/ constructive res judiciata.
26. We may in this very context refer to a recent decision on the
Supreme Court of India rendered in the case of Bharat Kantilal
Dalal (supra), wherein certain stay orders passed by the Division
Bench of the Bombay High Court in Letter Patents Appeal were
assailed on the ground of non maintainability of such Letter
Patents Appeal in view of Section 5, 36, 37 and 50 of the Act,
1996. Reliance was placed in support of this contention upon a
decision of Supreme Court of India in Paramjeet Singh Patheja’s
case (supra). Para 10 of this report containing the submissions in
this regard are quoted hereinbelow:-
“ 10. Learned Senior Counsel for the Appellant, while
inviting the attention of this Court to Sections 5, 36,
37 and 50 of the Act, submitted that, against the
orders dated 18.12.2014 passed by the learned
Single Judge in the Chamber Summons, no Letters
Patent Appeals lie, as the Act is a complete code in itself.
In support of the aforesaid submissions, reliance has
been placed on decisions of this Court in Paramjeet
Singh Patheja v. ICDS Ltd., Fuerst Day Lawson Ltd. v.
Jindal Exports Ltd., Union of India v. Simplex
Infrastructures Ltd., Kandla Export Corporation and Anr.
v. OCI Corporation and Anr., Sundaram Finance Ltd. v.

28
SPLA No. - 278 of 2026
Abdul Samad and Anr., Amazon.Com NV Investment
Holdings LLC v. Future Retail Ltd. and Ors., Noy
Vallesina Engineering Spa v. Jindal Drugs Limited &
Others, PASL Wind Solutions Private Limited v. GE
Power Conversion India Private Limited8 and
Electrosteel Steel Limited v. Ispat Carrier Private
Limited9, and decisions of the Bombay High Court in Jet
Airways (India) Ltd. v. Subrata Roy Sahara and Sushila
Singhania v. Bharat Hari Singhania. ”
27. Based on a discussion contained therein the Supreme Court
observed in Para 19 of the judgment in Bharat Kantilal Dalal
(supra), as under:-
“ 19. The Act is a self-contained code and is founded
upon principles of party autonomy, expedition and
finality. The legislative design of the Act restricts
judicial interference. The orders of the learned Single
Judge dated 18.12.2014, were passed in course of
execution of arbitral award and are, therefore,
traceable to the Act and not to CPC. The execution of
the arbitral award is sought against the respondents
in their capacity as executors of the aforesaid Will.
The respondents step into the shoes of judgment
debtor of the limited purpose of the execution. The
Letters Patent Appeals filed by respondents were
therefore not maintainable. The Division Bench of the
High Court erred in admitting the appeals subject to
maintainability of the same and in admitting the
appeals without assigning any reasons.”
28. In Para 22 of the judgment in Bharat Kantilal Dalal (supra)
the Supreme Court went on to conclude as under:-
“ 22. In view of foregoing discussion, impugned
orders dated 06.03.2018 passed by the Division

29
SPLA No. - 278 of 2026
Bench of the High Court of Bombay in Letters Patent
Appeals, namely Appeals No.320 and 372 of 2015
are quashed and set aside. The aforesaid Letters
Patent Appeals are dismissed as not maintainable.”
29. The Letter Patent Appeals were held to be not maintainable
for the reasons given therein.
30. The case at hand has also arisen from execution of
proceedings under Section 36, therefore, the decision in Bharat
Kantilal Dalal (supra) applies on all its fours to the case at hand.
In the said case the decision of the Supreme Court of India in the
case of Sundram Finance Limited (supra), on which heavy
reliance was placed by the appellants’ counsel, was also referred.
31. We may also in this very context refer to another decision of
Supreme Court of India rendered in the case of (2017) 14 SCC
225; Union of India Vs. Simplex Infrastructures Limited
wherein the question which came up for consideration was
regarding maintainability of a Letter Patent Appeal before the High
Court of Calcutta against an order passed by the learned Single
Judge in proceedings under Section 34 condoning the delay in
filing the petition. Hon’ble the Supreme Court referring to its
judgment in Furest Day Lawson Ltd. (supra) held that the matter
was squarely covered by it and that the High Court had erred in
entertaining the appeal. It also referred to Section 37 of the Act,
1996 and observed that on a bare reading of the said provision it
is noticed that the remedy of appeal has been provided only

30
SPLA No. - 278 of 2026
against an order of setting aside or refusing to set aside an
arbitral award under Section 34. No appeal is provided against an
order passed by the Court of competent jurisdiction condoning the
delay in filing the petition under Section 34 of the Act as such. The
reasoning implicit therein is that if an appeal is not provided
against any order under Section 37, then, the same would not be
maintainable under any law considering the fact that the Act, 1996
has been held to be a complete and exhaustive code in itself and
if it does not provide a remedy then the same can not be availed
under any other other law. The ratio of the said judgment also
applies to the case at hand in all its fours.
32. In this context we may also refer to another decision of
Hon’ble the Supreme Court rendered in the case of Madhya
Pradesh Road Development Corporation Limited (supra),
wherein the Supreme Court examined the structure of the 1996
Act, especially, Section 5 thereof and referred to a decision of a
seven Judges Bench in Interplay Between Arbitration
Agreements under Arbitration and Conciliation Act, 1996
and Stamp Act, 1899 reported in (2024) 6 SCC 1 to emphasize
and reaffirm the position of law with respect to the limited role of
Courts in arbitration. It categorically observed that Section 5,
beginning with a non obstante clause, manifests the legislative
intent to restrict the role of Courts to only those instances which
are expressly contemplated under Part- I of the 1996 Act. It went
on to observe that while exercising any power under the

31
SPLA No. - 278 of 2026
provisions of the 1996 Act it is the duty of the Court to ensure that
the object of the said Act i.e. speedy resolution of disputes with
minimul judicial interference is effectuated, and that intervention
remains confined to circumstances where such support is
indispensable for the arbitral process or there is perversity so
manifest that it shocks the conscience of the Court. Most
importantly, it observed in the context of interference with the
arbitral award – “the judicial interference with the arbitral
award, if any, is provided for only under Section 34 and 37 of
the 1996 Act.” These observations are also helpful in answering
the issue raised before us.
33. We may again refer to seven Judges Bench Judgment of
the Supreme Court in Interplay Between Arbitration
Agreements under Arbitration and Conciliation Act, 1996 and
Stamp Act, 1899 , wherein, the Supreme Court considered the
observations of a two judges Bench in Furest Day Lawson Ltd.
(supra), with approval, wherein, it had been held that Letter
Patents Appeal would be excluded by the application of one of the
general principles that where the special Act sets out a self-
contained code the applicability of general law procedure would
be impliedly excluded, we may in this regard refer to Para 90, 91
and 92 of the Seven Judges Bench decision which read as
under:-
“ 90. In Girnar Traders (3) v. State of Maharashtra, a
Constitution Bench of this Court observed that a self-

32
SPLA No. - 278 of 2026
contained code is a complete legislation with regard
to the purpose for which it is enacted. Such a self-
contained code provides for a complete machinery to
deal with the purpose sought to be achieved by that
law and its dependence on other legislations is either
absent or minimal.
91. A two-Judge Bench of this Court, in Fuerst Day
Lawson Ltd. v. Jindal Exports Ltd., explained the
nature of the Arbitration Act in the following terms:
(SCC p. 371, para 89)
“89. It is, thus, to be seen that the Arbitration
Act, 1940, from its inception and right through
to 2004 (in P.S. Sathappan was held to be a
self-contained code. Now, if the Arbitration Act,
1940 was held to be a self-contained code, on
matters pertaining to arbitration, the Arbitration
and Conciliation Act, 1996, which consolidates,
amends and designs the law relating to
arbitration to bring it, as much as possible, in
harmony with the U NCITRAL Model must be
held only to be more so. Once it is held that
the Arbitration Act is a self-contained code and
exhaustive, then it must also be held, using the
lucid expression of Tulzapurkar, J., that it
carries with it “a negative import that only such
acts as are mentioned in the Act are
permissible to be done and acts or things not
mentioned therein are not permissible to be
done”. In other words, a letters patent appeal
would be excluded by the application of one of
the general principles that where the special
Act sets out a self-contained code the
applicability of the general law procedure
would be impliedly excluded.”

33
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92. The Arbitration Act is a self-contained code inter
alia with respect to matters dealing with appointment
of arbitrators, commencement of arbitration, making
of an award and challenges to the arbitral award, as
well as execution of such awards. When a self-
contained code sets out a procedure, the applicability
of a general legal procedure would be impliedly
excluded. Being a self-contained and exhaustive code
on arbitration law, the Arbitration Act carries the
imperative that what is permissible under the law
ought to be performed only in the manner indicated,
and not otherwise. Accordingly, matters governed by
the Arbitration Act such as the arbitration agreement,
appointment of arbitrators and competence of the
Arbitral Tribunal to rule on its jurisdiction have to be
assessed in the manner specified under the law. The
corollary is that it is not permissible to do what is not
mentioned under the Arbitration Act. Therefore,
provisions of other statutes cannot interfere with the
working of the Arbitration Act, unless specified
otherwise.”
34. On a bare reading of the aforesaid quotation it is evident
that the plea raised by the appellants’ counsel that in the absence
of any specific provisions in the Act, 1996, an intra court appeal
would lie under Chapter VIII Rule 5 of the Allahabad High Court
Rules, 1952 from an order passed under Section 36 of the Act,
1996 by a Single Judge, is not acceptable. It is not acceptable not
only for the reasons already given with regard to the intention of
the Legislature as contained in Section 5 and Section 37 which
explicitly excludes any appeal other than the one permissible and
prescribe under Section 37 of the Act, 1996 but, also on the

34
SPLA No. - 278 of 2026
principle that the Act, 1996 being a self-contained and exhaustive
code which sets out the procedure including on the subject of
execution of awards and does not provide an appeal from an
order passed in execution proceedings rather prohibits it, the
applicability of a general legal procedure stand excluded. The
observations in Para 92 of the aforesaid report conclusively
answers the question. It is not permissible to do what is not
mentioned under the Arbitration Act, 1992.
35. We may also refer to another decision of Supreme Court of
India reported (1993) 3 SCC 1;State of West Bengal Vs. M/s
Gouranglal Chatterjee , wherein the question of maintainability of
a Letter Patent Appeal against an order passed under the
Arbitration Act, 1940 came up for consideration and reference was
made in this regard to the three Judge Bench decision in
Mohindra Supply Co. (supra). Paragraph No. 3 and 4 of the said
report are as under:-
“ 3. Section 39 of the Arbitration Act came up for
consideration in Union of India v. Mohindra Supply
Co. The Court after going into detail and
examining various authorities given by different
High Courts held that no second appeal lay under
Section 39(2) against a decision given by a
learned Single Judge under Section 39(1). In
respect of the jurisdiction under Letters Patent the
Court observed that since Arbitration Act was a
consolidating and amending Act relating to
arbitration it must be construed without any

35
SPLA No. - 278 of 2026
assumption that it was not intended to alter the
law relating to appeals. The Court held that in
view of bar created by sub-section (2) of Section
39 debarring any second appeal from an order
passed in appeal under sub-section (1) the
‘conclusion was inevitable that it was so done with
a view to restrict the right of appeal within strict
limits defined by Section 39’. Therefore, so far the
second part is concerned, namely, the
maintainability of the appeal under Letters Patent
it stands concluded by this decision.
4. The learned counsel for the appellant
vehemently argued that since the decision by the
Supreme Court was in respect of an appeal
directed against an order passed by a learned
Single Judge in exercise of appellate jurisdiction
no second appeal lay but that principle could not
be applied where the order of learned Single
Judge was passed not in exercise of appellate
jurisdiction but original jurisdiction. The argument
appears to be without any substance as sub-
section (1) of Section 39 which is extracted below:
“(1) An appeal shall lie from the following orders
passed under this Act (and from no others) to the
Court authorised by law to hear appeals from
original decrees of the Court passing the order—
(i) superseding an arbitration;
(ii) on an award stated in the form of a special
case;
(iii) modifying or correcting an award;
(iv) filing or refusing to file an arbitration
agreement;(v) staying or refusing to stay legal

36
SPLA No. - 278 of 2026
proceedings where there is an arbitration
agreement;
(vi) setting aside or refusing to set aside an
award:
Provided that the provisions of this section shall not
apply to any order passed by a Small Cause Court.
(2) No second appeal shall lie from an order passed
in appeal under this section, but nothing in this
section shall affect or take away any right to appeal to
the Supreme Court.”
provides that an appeal could lie only from the orders
mentioned in the sub-section itself. Since the order
passed by learned Single Judge revoking the
authority of the Chief Engineer on his failure to act as
an arbitrator was not covered in either of the six
clauses mentioned in Section 39 it is obvious that no
appeal could be filed against the order of the learned
Single Judge.
”
36. The above quoted extract answers the issue involved in this
appeal as provision of Section 39 of the 1940 Act was similar to
Section 37 of the 1996 Act.
37. Yet another decision by a three Judges Bench of Supreme
Court of India reported in (2002) 4 SCC 447; Union of India and
Ors. Vs. Aradhana Trading Company and Ors., wherein it was
held albeit in the context of Section 39(1) of the Act, 1940,
corresponding to Section 37(1) of the Act, 1996, that Letter Patent
Appeal would not lie in view of the restrictions contained in
Section 39(1) and 39(2). We may quote relevant extract of Para
13 of the said decision which is as under:-

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“ Normally, an appeal would be maintainable
but there are two constraints as provided under the
Special Act, namely, it should not be a second
appeal as provided under sub-section (2) of Section
39 of the Act, which position is also clear in the case
of Mohindra Supply Co. where it was held that the
second appeal under Section 100 CPC or under the
Letters Patent against an appellate order was
barred by virtue of sub-section (2) of Section 39.
Here we find that there is yet another constraint as
provided under sub-section (1) of Section 39 of the
Arbitration Act itself and it is emphatic too when it
says that the appeal shall lie against the orders
indicated in the provision and from no other order.
Section 41 of the Arbitration Act makes the
provisions of CPC applicable subject to the
provisions of the Arbitration Act and the rules framed
thereunder. Therefore, the nature of an order
against which an appeal may lie must conform to
the nature of the order as enumerated under sub-
section (1) of Section 39 of the Arbitration Act. If it
does not amount to such an order as enumerated
under sub-section (1) of Section 39, the prohibition
as contained in this sub-section (“against no other
order”) itself, would become operative, subject to
which alone provisions of CPC apply under Section
41 of the Act. In the facts of the present case we find
that an order refusing to recall an order passed by
the Court will not amount to refusal to set aside the
award under clause (vi) of sub-section (1) of Section
39 of the Arbitration Act as no objections to set
aside the award have ever been filed with or without
application for condonation of delay, challenging the
award. Admittedly, the appellant did not file any
appeal against the order dated 27-1-1998. In these
circumstances and in view of the provisions of the

38
SPLA No. - 278 of 2026
Arbitration Act, the decision in the case of National
Sewing Thread Co. Ltd. shall also not be applicable
as in the Trade Marks Act with which the Court was
dealing, did not have any provision like the one
contained in sub-section (1) of Section 39 of the
Arbitration Act restricting the right of appeal only in
respect of certain nature of orders and prohibiting
appeal against any other order whatsoever.
Therefore, in the case of National Sewing Thread
Co. Ltd. it was held that where a provision for
appeal was made under Section 76(1) of the Trade
Marks Act to the High Court, with nothing more, the
other provisions relating to exercise of that
jurisdiction by the High Court would be applicable.
The case of National Sewing Thread Co. Ltd. is thus
based on different provisions and is clearly
distinguishable. The case in hand is covered by the
decisions in the cases of Nilkantha and Mohindra
Supply Co. both decided by Bench of four Judges
which do not seem to have been noticed in the other
judgments. ”
38. The Division Bench of the Bombay High Court in its
judgment in the case of Jet Airways (India) Limited (supra) has
also held a Letter Patent Appeal as not being maintainable on a
consideration of the scheme of the Act, 1996 and the precedents
on the subject.
39. As regards the contention of the appellants’ counsel that the
execution proceedings out of which these appeals arise are not
under the Act, 1996 but under the provisions of the Order 21 CPC,
the same is absolutely misconceived. Section 36 is a provision for
enforcement of an award. It provides for enforcement of an award

39
SPLA No. - 278 of 2026
rendered under Part– I of the Act, 1996 “ in accordance with the
provisions of the Code of Civil Procedure in the same manner as
if it were a decree of the Court. ” What it means is that a legal
fiction has been created by which the award is deemed to be a
decree and is to be enforced under Section 36 of the Act, 1996
with the aid of the provisions of the Code of Civil Procedure but it
does not mean that the award is in fact a decree and its execution
is not under the Act, 1996 but under the Code of Civil Procedure,
1908. The said contention has been made only to be rejected.
40. So far as reliance placed by the appellants’ counsel upon a
judgment of the Supreme Court in the case of Sundram Finance
Limited (supra), first and foremost we must understand as to
what was the issue before the Supreme Court in the said case. It
is impermissible to take out one word or sentence from a
judgment and attempt to rely upon it, as if, it was the law laid
down. The issue before the Supreme Court in the said case has
been noticed in Paragraph 1 which arose out of divergent legal
opinion amongst different High Courts as to whether an award
under the Act, 1996 is required to be first filed in the Court having
jurisdiction over the arbitration proceedings for execution and then
to obtain transfer of the decree or whether the award can be
straightaway filed and executed in the Court where the assets are
located. In fact, on a reading of the said decision we do not find
anything therein which may help the cause of the appellants or
support the contention of the appellants’ counsel that the

40
SPLA No. - 278 of 2026
execution of an award is not under the Act, 1996 but under the
provisions of the Code of Civil Procedure, 1908. We may in this
regard refer to Paragraph 14 of the said report, wherein, the
Supreme Court considered the provisions of Section 36 of the Act,
1996 and observed that “an award is to be enforced in
accordance with the provisions of the said Code in the same
manner as if it were a decree. It is, thus, the enforcement
mechanism, which is akin to the enforcement of a decree but the
award itself is not a decree of the civil court as no decree
whatsoever is passed by the civil court. It is the Arbitral Tribunal,
which renders an award and the tribunal does not have the power
of execution of a decree. For the purposes of execution of a
decree the award is to be enforced in the same manner as if it
was a decree under the said Code.” It then referred to the
definition clause of Section 2(e) and Section 42 and 32 of the Act,
1996. Ultimately, in Para 19 of the report it again observed that an
award under Section 36 of the said Act is equated to a decree of
the Court for the purposes of execution and only for that purpose.
The aforesaid decision does not help the cause of the appellants.
41. The reliance placed by the learned counsel for the
appellants upon the decision of the Supreme Court in the case
case of P.S. Sathappan (supra) is also misplaced. In the said
case the question was of maintainability of a Letter Patent Appeal
against an order passed by a Single Judge of the High Court
sitting in appellate jurisdiction under Code of Civil Procedure,

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SPLA No. - 278 of 2026
1908 which is not the case here. In that context the provision of
Section 4, 104 and 100-A and its Legislative history was
considered. We are not concerned with the provisions of CPC but
of the Act, 1996. We have already considered Section 5 and 37 of
the Act, 1996 which are relevant for our purpose and these
provisions clearly evince a legislative intent, explicitly so, that
except for the orders mentioned in Section 37 no other orders
would be amenable to appeal, an aspect which has already been
considered specifically by the Supreme Court of India in various
decisions referred hereinabove, especially, the one in Furest Day
Lawson Ltd. (supra) wherein the aforesaid decision in P.S.
Sathappan (supra) has also been considered and it has been
held that Arbitration Act, 1940 from its inception was a self-
contained code, therefore, reliance upon this decision by the
appellants’ counsel is of no avail.
42. As regards the contention of the appellants’ counsel that the
arbitral proceedings stand terminated on rendering of the final
award under Section 32 of the Act, 1996, therefore, the
proceedings under Section 36 of the Act, 1996 are not part of the
arbitral proceedings, with respect, the said contention is also
misconceived. For execution/enforcement an award rendered
under the Act, 1996 under Part – I thereof, the provision is
contained in Section 36 and as already stated hereinabove the
enforcement is under the provision of the Act, 1996 and for the
said purpose such award is deemed to be a decree and has to be

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enforced in accordance with the provisions of Code of Civil
Procedure, 1908 which does not mean that the enforcement is not
under the Act, 1996. This contention is rejected. The Supreme
Court in the case of Government of India Vs. Vedanta Limited
and Ors. reported in (2020) 10 SCC 1 held in Para 69 of its
decision as under:-
“ 69. Section 36 of the Arbitration Act, 1996 creates a
statutory fiction for the limited purpose of enforcement of
a “domestic award” as a decree of the court, even
though it is otherwise an award in an arbitral proceeding.
By this deeming fiction, a domestic award is deemed to
be a decree of the court, even though it is as such not a
decree passed by a civil court. The Arbitral Tribunal
cannot be considered to be a “court”, and the arbitral
proceedings are not civil proceedings. The deeming
fiction is restricted to treat the award as a decree of the
court for the purposes of execution, even though it is, as
a matter of fact, only an award in an arbitral proceeding.
In Paramjeet Singh Patheja v. ICDS Ltd., this Court in the
context of a domestic award, held that the fiction is not
intended to make an award a decree for all purposes, or
under all statutes, whether State or Central. It is a legal
fiction which must be limited to the purpose for which it
was created. Paras 39 and 42 of the judgment in
Paramjeet Singh Patheja read as : (SCC pp. 345-46)
“39. Section 15 of the Arbitration Act, 1899
provides for “enforcing” the award as if it
were a decree. Thus a final award, without
actually being followed by a decree (as was
later provided by Section 17 of the
Arbitration Act of 1940), could be enforced
i.e. executed in the same manner as a
decree. For this limited purpose of

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enforcement, the provisions of CPC were
made available for realising the money
awarded. However, the award remained an
award and did not become a decree either
as defined in CPC and much less so far the
purposes of an entirely different statute such
as the Insolvency Act are concerned.
*
42. The words “as if ” demonstrate that award
and decree or order are two different things.
The legal fiction created is for the limited
purpose of enforcement as a decree. The
fiction is not intended to make it a decree for all
purposes under all statutes, whether State or
Central.” (emphasis supplied) ”
43. Thus, from the aforesaid the legal position is very clear that
an award is deemed to be a decree but not actually a decree.
44. This decision was further considered by the Supreme Court
in the case of Amazon.com (supra) and in Para 77 it was
observed as under:-
“ 77. This judgment in Vedanta [Union of
India v. Vedanta Ltd. is, therefore, authority for the
proposition that the fiction created by Section 49 of
the Arbitration Act is limited to enforcement of a
foreign award, with the important corollary that an
application to enforce an award is an application
under the Arbitration Act and not an application
under Order 21 of the Code of Civil Procedure (in
which case, such application would have been
governed by Article 136 of the Limitation Act as an
execution application under Order 21, and not an
application under the residuary Article 137 of the
Limitation Act). Mr Salve's attempt to distinguish
this judgment on the ground that Section 49 lays
down an entirely different procedure from the
procedure to be followed for a domestic award qua

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enforceability does not, in any manner, distinguish
the ratio of this judgment which is that an
application to enforce a foreign award is not under
Order 21 of the Code of Civil Procedure but under
the Arbitration Act. Also, the deeming provision in
Section 49, having reference to a decree of “that
Court”, which refers to the court which is satisfied
that the foreign award is enforceable, again,
makes no difference to the aforesaid ratio of the
judgment. ”
45. The Supreme Court categorically repelled suggestion of Mr.
Salve who attempted to draw a distinction as to the application of
the decision in the case of Vedanta Limited (supra) in the case of
a domestic award as the said case is related to Section 49 (Part II
of the Act, 1996) pertaining to a foreign award. The Supreme
Court categorically held that this did not in any manner distinguish
the ratio of the said judgment in the case of Vedanta Limited
(supra) which is that an application to enforce a foreign award is
not under Order XXI of Code of Civil Procedure but under the
Arbitration Act, meaning thereby, the enforcement / execution is
under the Act, 1996.
46. For the reasons discussed hereinabove reliance placed by
the appellants’ counsel upon a Full Bench judgment of the Nagpur
Bench of Bombay High Court in the case of Gemini Bay
Transcription Private Limited Vs. Integrated Sales Service
Ltd. reported in 2018 LawSuit (Bom) 255 is also of no avail. An
award is deemed to be a decree and is to be enforced in
accordance with the Code of Civil Procedure, 1908 which does
not mean that it is actually a decree nor that its execution is under

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the Code of Civil Procedure, 1908. The enforcement/ execution is
under Section 36 of the 1996 with the aid of the provisions of the
Code of Civil Procedure.
47. For the reasons given hereinabove, reliance placed by Shri
Pritish Kumar, learned Senior Counsel appearing for the appellant
upon the decision of the Supreme Court of India reported in
(2002) 5 SCC 510; ITI Limited Vs. Siemens Public
Communications Network Ltd. also does not help his cause.
Not only this decision is referred to a Larger Bench in a case
reported in (2017) 2 SCC 37; Mahanagar Telephone Nagar
Imited Vs. Applied Electronics Limited, which of course by itself
does not dilute its precedentiary value but when we peruse the
said judgment we find that what it holds is that the provisions of
the Act, 1996, especially, Section 37(2) thereof, does not bar a
revisional remedy under the Code of Civil Procedure i.e. Section
115 CPC, whereas, we are not concerned with a revision under
Section 115 CPC but a Special Appeal under the Allahabad High
Court Rules, 1952, in fact, in Para 22 of the said report a clear
distinction has been drawn between a revision and an appeal,
therefore, the said decision also does not persuade us to take any
different view as regards the maintainability of the appeal.
48. The contention of the appellants’ counsel that an intra court
appeal is also akin to a revision is absolutely misplaced and has
been made only to be rejected.

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49. In view of the above discussion, we hold that the Special
Appeal under Chapter VIII Rule 5 of the Allahabad High Court
Rules, 1952 arising out of an order passed by learned Single
Judge of this Court in proceedings under Section 36 of the Act,
1996, is not maintainable and the fact that in the earlier appeal
between the parties the appeal was held to be maintainable is of
no consequence for the reason already given hereinabove and it
does not attract the principle of res judicata/ constructive res
judicata in view of the exception to application of such principle to
points of jurisdiction and to pure points of law as already
discussed. None of the decisions cited by the appellants’ counsel
help his cause in view of the discussions already made.
50. The remedy, if at all, is before Hon’ble the Supreme Court of
India under Article 136 of the Constitution of India, as, observed in
Simplex Infrastructures Limited (supra).
51. In view of the above, the Special Appeal No. 278 of 2026 is
liable to be dismissed as not maintainable. Accordingly, the same
is dismissed.
52. We may at this stage mention that Special Appeal Defective
No. 430 of 2026 has also been filed with a delay of 291 days
which has not been condoned. The special appeal itself not being
maintainable the same is also dismissed.
(Manjive Shukla,J.) (Rajan Roy,J.)
September 16, 2026 /R.K.P.
Digitally signed by :-
RAJ KUMAR PATEL
High Court of Judicature at Allahabad,
Lucknow Bench