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Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter.
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AI Drafter - (New and Powerful) ✕ Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter.
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Issues: (i) whether the appeal was maintainable against the order of the executing court; (ii) whether the arbitrator, having relinquished office before making the award, had jurisdiction to make the award; and (iii) whether the judgment-debtor could raise the plea of nullity in execution under Section 47 of the Code of Civil Procedure, 1908 despite not having challenged the award under the ordinary modes of direct attack.
Issue (i): whether the appeal was maintainable against the order of the executing court.
Analysis: An order refusing to treat the award-decree as a nullity and directing execution affected substantive rights and answered an objection going to the root of execution. Such an order was treated as a judgment for purposes of Section 10 of the Delhi High Court Act, 1966 and the applicable Letters Patent principle. The fact that Section 47 is not included in the definition of decree did not deprive the order of appealability.
Conclusion: The appeal was maintainable.
Issue (ii): whether the arbitrator, having relinquished office before making the award, had jurisdiction to make the award.
Analysis: The arbitration appointment was linked to the office of arbitrator in the Ministry, and the appointment order as well as the arbitration clause showed that the authority to act depended on continued holding of that office. The record showed that the arbitrator had relinquished office on 30.11.1990, while the award was made on 5.12.1990. Once the office was vacated, the arbitrator had no authority to act, and the resulting award was without inherent jurisdiction.
Conclusion: The award was void for want of jurisdiction.
Issue (iii): whether the judgment-debtor could raise the plea of nullity in execution under Section 47 of the Code of Civil Procedure, 1908 despite not having challenged the award under the ordinary modes of direct attack.
Analysis: Section 47 governed questions arising in execution, and a decree founded on a void award could be questioned in execution as a collateral attack. Failure to file objections under the award-setting provisions or to pursue an appeal did not bar the executing court from examining whether the decree was a nullity. The executing court could therefore declare both the award and the decree inexecutable if the award itself was made without jurisdiction.
Conclusion: The plea was open in execution proceedings.
Final Conclusion: The appellate court interfered with the execution order, held the award and the decree founded on it to be void, and left it open to the competent authority to make a fresh reference under the contract.
Ratio Decidendi: An award made by a person who has already ceased to hold the office conferring arbitral authority is a nullity, and such nullity may be raised in execution under Section 47 of the Code of Civil Procedure, 1908 notwithstanding the absence of prior direct challenge.
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