Is There a Draftsman's Error in the Arbitration and Conciliation Ordinance 2015

The Draftsman's Error in the Arbitration and Conciliation Ordinance 2015.

There appears to be the draftsman's error in the numbering of the Sub-Section 2 and 3 of the Section 19 of the Arbitration & Conciliation Ordinance, 2015 (Section 36 of the A & C Act).

These two Sub-Sections of Section 19 of the A & C Ordinance, 2015 provides as under :-

Sub-Section (2) of Section 19 of the A & C Ordinance, 2015:-

Where an application to set aside the arbitral award has been filed in the Court u/s 34, the filing of such an application shall not by itself render that award unenforceable, unless the Courts an order of stay of the operation of the said arbitral award in accordance with the provisions of Sub-Section (3), on a separate application made for that purpose.

Sub-Section (3) of Section 19 of the A & C Ordinance, 2015:-

Upon filing of an application under Sub-Section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing.

The conjoint reading of the above referred Sub Sections of Section 19 of the Ordinance leads to the conclusion that an application for the stay of the operation of the arbitral award shall be filed at the stage of enforcement of the arbitral award/execution proceeding (under Section 36 of the Arbitration and Conciliation Act) and not at the stage of Section 34 of the Arbitration and Conciliation Act.

According to me, this could not be the intention of the law makers and there appears to be the draftsman's error.

The intention of the lawmakers must be that, the judgment debtor has to move an application for stay of the operation of the said award when an application for setting aside the arbitral award is preferred/filed/pending u/s 34 of the A & C Act and not at the time of execution of arbitral award as provided u/s 19(3) of the Ordinance. At this stage reference is required to be made to the provisions contained under Rule 5 of the Order XLI of CPC which provides for stay of the execution of the decree by the appellate court and there is no provision in CPC which provides for stay of the decree by the executing court except Rule 26 of the Order XXI of CPC, but therein it is only provided that upon sufficient cause being shown the executing court shall stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree and it does provide that the executing court has the inherent powers to grant stay against the execution proceedings.

Therefore, it is clear that there is the draftsman's error qua the numbering of the Sub-Section 2 & 3 of Section 19 of the A & C Ordinance of 2015.

If the above-referred draftsman's error is not corrected, judgment debtor would get chance to file an application of the stay of the operation of the arbitral award in the execution proceedings. It is settled principle of law that the executing court can not go beyond the decree, unless it is nullity (Section 47 of CPC) and, therefore, the executing court would not be empowered to stay the execution proceeding, unless of-course, as provided under Rule 26 of Order XXI of CPC.

If the above-referred draftsman's error is not corrected by renumbering Sub Section 2 and 3 of Section 19 of the Ordinance as any other Sub-Section of Section 18 of the Ordinance (Section 34 of the A & C), same would create colossal chaos.

This is how I read the provisions contained under the A & C Ordianance, 2015. I, therefore, request your goodself to share your views and correct me, if I am wrong.

Thank You

An Indian