IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 WP(C).No. 15696 of 2010(O) -------------------------- EP 415/2009 IN OP(ARB).23/2007 of III ADDL.SUB COURT, ERNAKULAM .................... PETITIONER(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, IRRIGATION DEPARTMENT (WATER RESOURCES DEPARTMENT) SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER, KIP CIRCLE, KOLLAM. BY GOVERNMENT PLEADER SHRI K.R.GANESH RESPONDENT(S): --------------- P.P. POULOSE, ENGINEERING CONTRACTOR, PALANNATTIL HOUSE, KUNNACKKAL.P.O, PRESENTLY, REVIEW BUILDING, NALACHIRA.P.O, TRIVANDRUM - 15. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.15696 of 2010 -------------------------------------- Dated this the 25th day of May, 2010. JUDGMENT The State has come up with this Writ Petition to set aside Ext.P6, E.P.No.415 of 2009 in O.P.(Arbitration) No.23 of 2007 pending in the court of learned Sub Judge, Ernakulam. Contention in short is that no decree has been drawn up pursuant to Ext.P1, order as per Section 17 of the Arbitration Act, 1940 (for short, “the Act”), execution can only be of decree and hence Ext.P6 is not maintainable. 2. The Arbitrator had passed award on 31.07.1995 following which respondent filed O.P.No.8 of 2001 challenging that award to the extent that claims under clauses - (k) and (r) were disallowed. Learned Sub Judge set aside the award to that extent and directed the Arbitrator to reconsider claims under those clauses as well. Thereafter Arbitrator passed a revised award allowing those claims also. Pursuant to that, respondent filed petition in the court of learned Sub Judge to pass a decree in terms of the award. That resulted in Ext.P1, order dated 16.09.2008. Learned Government Pleader appearing for petitioner/State contends that under Section 17 of the Act under which proceedings were initiated, execution can only be of the decree. It is also the argument of learned Government Pleader that Section 36 of the Arbitration and Conciliation Act, 1996 has no application to the case on hand in view of the WP(C) No.15696/2010 2 decision of the Apex Court in N.S. Nayak & Sons v. State of Goa ((2003 ) 6 SCC 56). Learned Government Pleader has referred me to the observations and finding in paragraph Nos.9 and 10 of the said decision. 3. Fact remained that execution of the award on the ground above stated has been objected by petitioners before learned Sub Judge and that objection has not so far been decided by the learned Sub Judge. In that situation it is not necessary for this Court to exercise its writ jurisdiction under Article 227 of the Constitution. What is required is to direct learned Sub Judge to dispose of the objection raised by the petitioners as to maintainability of the execution petition. Accordingly this Writ Petition is disposed of directing learned Sub Judge, Ernakulam to dispose of the objection raised by the petitioners as to maintainability of the execution petition on the grounds referred to in the objection. Learned Sub Judge shall proceed with the execution only after disposing of the objection. THOMAS P.JOSEPH, Judge. cks