Intra-court appeals against arbitral-award execution orders are not maintainable, Allahabad HC rules

The appellants filed two intra-court special appeals under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, challenging orders dated 12 May 2026 and 11 July 2025 passed by a Single Judge in proceedings under Section 36 of the Arbitration and Conciliation Act, 1996 (“the 1996 Act”) concerning enforcement of an arbitral award.

The respondent objected to the maintainability of the appeals, relying principally on Sections 5 and 37 of the 1996 Act and Supreme Court decisions holding that the 1996 Act is a self-contained code and that appeals are permissible only as expressly provided by Section 37.

The appellants contended that an earlier special appeal between the same parties and arising from the same proceedings—Special Appeal No. 394 of 2025—had been held maintainable and that the respondent was barred by res judicata or constructive res judicata from raising the objection subsequently.

Special Appeal Defective No. 430 of 2026 was also filed with a delay of 291 days, which had not been condoned.

1. Whether a special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 is maintainable against an order passed by a Single Judge in proceedings under Section 36 of the 1996 Act?

2. Whether the earlier decision holding a special appeal between the parties to be maintainable operated as res judicata or constructive res judicata against the respondent’s subsequent objection to jurisdiction and maintainability?

3. Whether enforcement proceedings under Section 36 are proceedings under the 1996 Act, or merely execution proceedings under Order XXI of the CPC outside the statutory appellate scheme of the 1996 Act?

4. Whether termination of arbitral proceedings under Section 32 after issuance of the award excluded Section 36 enforcement proceedings from the operation of the 1996 Act?

5. Whether Special Appeal Defective No. 430 of 2026 could be entertained despite an uncondoned delay of 291 days?

Section 5 of the 1996 Act restricts judicial intervention in matters governed by Part I to instances expressly provided in that Part.

Section 37 provides an exhaustive list of appealable orders and stipulates that appeals shall lie “from no others”; an order under Section 36 is not included.

The 1996 Act is a self-contained and exhaustive code, and the general appellate jurisdiction under Letters Patent or Chapter VIII Rule 5 is impliedly excluded where the Act does not provide an appeal: Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., Bharat Kantilal Dalal v. Chetan Surendra Dalal, Union of India v. Simplex Infrastructures Ltd., and Interplay Between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Stamp Act, 1899.

An erroneous decision on inherent jurisdiction or a pure question of law does not attract res judicata; no court can acquire jurisdiction through consent, waiver, or an earlier erroneous order: Canara Bank v. N.G. Subbaraya Setty, Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, and Smt. Isabella Johnson v. M.A. Susai.

Section 36 creates only a limited legal fiction under which an arbitral award is enforced as if it were a decree; the award does not become an actual civil-court decree, and enforcement remains under the 1996 Act with the aid of the CPC: Government of India v. Vedanta Ltd., Sundaram Finance Ltd. v. Abdul Samad, and Amazon.com NV Investment Holdings LLC v. Future Retail Ltd.

The Court held that the maintainability objection concerned the inherent jurisdiction of the appellate forum and a pure question of law, not the parties’ substantive rights.

Consequently, the earlier decision in Special Appeal No. 394 of 2025 could not confer jurisdiction upon the Court if the appeals were otherwise barred by the 1996 Act; the objection was therefore not defeated by res judicata or constructive res judicata.

On the statutory scheme, Section 37 expressly permits appeals only against the orders specified therein, and no appeal is provided against an order under Section 36.

Since the 1996 Act is a self-contained code and Section 5 excludes judicial intervention except as authorised by the Act, the general intra-court appellate power under Chapter VIII Rule 5 could not be invoked to create an additional appeal.

The Court rejected the appellants’ argument that Section 36 proceedings were merely proceedings under Order XXI CPC.

The phrase “as if it were a decree” creates a limited statutory fiction for enforcement; it does not transform the award into an actual decree or remove enforcement from the statutory framework of the 1996 Act.

Similarly, termination of arbitral proceedings under Section 32 did not affect the statutory character of subsequent enforcement under Section 36.

The Supreme Court’s decision in Bharat Kantilal Dalal, which held Letters Patent Appeals arising from arbitral-award execution proceedings to be non-maintainable, was found directly applicable.

The earlier contrary decision between the parties did not bar the respondent from raising the objection, as it concerned jurisdiction and a pure question of law.

Special Appeal No. 278 of 2026 was accordingly dismissed as not maintainable.

Special Appeal Defective No. 430 of 2026 was also dismissed because the appeal was not maintainable and the delay of 291 days had not been condoned.