1. Presented at the INTERNATIONAL SEMINAR ON
INSTITUTIONAL ARBITRATION & ONLINE DISPUTE
RESOLUTION AT NEW DELHI
HELD By: Construction Industry Arbitration Council (CIAC) 31ST
January, 2013
Asha Saxena Email: ashasaxena@hotmail.com
Advocate & Arbitrator
Asha Saxena & Associates, New Delhi, India
M: 91 9810310999

2. PROCEDURE
For Enforcement of a Foreign Decree
through Indian Courts (under Part II of
the Arbitration and Conciliation Act,
1996)
Application to the Court (Section 47) with
the
• Award,
• Contract and
• Proof that the award is a foreign award.
Enforcement may be refused(Section 48), if
other party proves that
• Award is invalid; or is 2

3.  Where the foreign award is held by the Court
to be enforceable as a Foreign Award {under
Part II of the Act (Section 49)} after examining
the requirements of Sections 47 and 48 (if
applicable) the Foreign Award shall be deemed
to be a decree of that court.
 Hurdles and consequent delays in upholding a
foreign decree for execution in India have
already been explained in previous sessions by
other speakers.

4. Transition from Foreign Award to
Indian Court Decree Executable in India
Contd…
• An Indian Court cannot enforce a Foreign
Award in India directly (Sec 49). It has to first
adjudicate on enforceability of the foreign
award and impart finality for execution like a
Decree under the CPC.

5. (1) An appeal shall lie from the order refusing to –
(a) refer the parties to arbitration under Section 45; and/or
(b) enforce a foreign award under section 48,
to the court authorized by law to hear appeals from such order.
(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.” (under Article 136 of the Constitution of
India)
Court can hear appeals from various orders -
under Section 45 relating to reference to arbitration and
under Section 48 refusing enforcement of foreign award.

6.  After the award has obtained finality, it can be executed by the
same court in the manner in which a decree passed by a Civil Court
is executed.
 Provisions for Execution are contained in Part II of the CPC from
Sections 36 to 74; and
 Procedure for Execution of Decrees and Orders is given in the
Order XXI of the Code of Civil Procedure, 1908 . Maximum Rules
i.e. 106 in this Procedure.
 Procedure for Execution: Application/s under order XXI, Rule 11
need to be made for execution of the decree in the same court
which passed the Decree. In case the Decree is not executable by the
same court, application would be made to the relevant civil court or
district court as the case may be.
 More than one Application can be filed seeking different reliefs e.g.
against any of the judgment debtors or jointly against all of them,
against the property as well as person at the option of the decree
holder.

7.  3AIR 1955 All 382 (382) (DB)
 4(1993) 1 SCC (Supp) 693
 5AIR 1956 Hyd 9 (9) (FB)
 6(1988) 1 Ker LT 358 (360)

8. If the execution is applied for within 2 years
of the date of passing of the decree, no
show cause notice required AND the
Decree can be executed right away.
Otherwise, a show cause notice (under Rule
22 of Order XXI CPC) will be issued to the
person against whom the execution is
applied.
Only under exceptional cases show cause
notice be dispensed with (under Sub Rule 2
to Rule 22 of Order XXI).

9. After show cause notice is served on
the person against whom the
execution is applied, he would have a
chance to object.
The objections would need to be
adjudicated upon before the decree
can be executed.
The procedure is subject to
objections, adjudication and stay at
every stage.

10. Under Rule 30 of CPC – Decree for Payment of Money or payment of
money as an alternative to some other relief, may be executed by
detention in the prison of the judgment debtor or attachment and sale
of his property. However, a woman cannot be detained in prison in
execution of a decree.
Under Rule 31 – Decree for Specific movable property – it may be
executed by seizure and delivery to the party to whom it has been
adjudged or by detention in the civil prison of the judgment-debtor or
by the attachment of his property, or by both.
If a property remains attached for 3 months and a judgment-debtor
does not obey, still neglects to pay, such property can be sold and
amount fixed to be received by the decree holder recovered.
Rule 34 deals with decree for execution of a document, endorsement
of negotiable instrument etc. In this case the decree holder is required
to prepare the draft and submit to the court for its execution and have it
served on the judgment debtor together with a notice requiring his
objections, subsequent adjudication or execution and registration of the
document.

11.  Loop holes, technicalities and avenues for
avoidance exist at every stage thus defeating the
eventual goal of arbitration i.e. quick resolution.
 Arbitral process barely takes less time than the
disposal of a suit by a Civil Court.
 Procedure of enforcing awards and executing
decrees is highly prolix, unduly lengthy and
complicated which invariably takes quite some
time

12.  The Arbitration & Conciliation Act, 1996 should
have provided for the enforcement of the award a
simple and accelerated process for execution
instead of CPC provisions.
 Penal provisions in the event of default under CPC
- instead of present provision of a sentence of 6
weeks to a maximum of 3 months imprisonment –
should be harsher along the lines of Section 27 of
the Consumer Protection Act, 1986 which lays
down that any one not complying with the final
order/direction was liable to be punished with
imprisonment which could extend from one
month to three years and/or a fine from Rs.2,000
to Rs.10,000.