1

* THE HON’BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

AND

THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

+ C.R.P.Nos.2183; 701; 1797 AND 1254 of 2022

% 12

th

SEPTEMBER, 2023

CRP No.2183 of 2022:

# M/s Obulapuram Mining Company Pvt. Ltd.,

… Petitioner..

AND

$ R.K. Mining Private Limited

… Respondent.

! Counsel for the Petitioner: Mr.M.Radhakrishna for Mr.Rajesh Maddy

^ Counsel for the respondents:Mr.Challa Kodanda Ram, Senior Counsel

Mr.V. Srikantha Rao

< Gist:

> Head Note:

? Cases referred:

1) 14 Indian Appeals 160

2) Laws (APH) 2002-12-107

3) 2019 (6) ALT 435

4) Manu/SC/0593/1989 = (1990) 1 SCC 193

5) Manu/SC/1363/2022

6) (2000) 6 SCC 655

7) Manu/GJ/0062/2019

8) 2019 SCC OnLine Raj 7770

9) 2021 SCC OnLine Del 3603

10) 2022 Latest Case Law 1221 Guj = 2022 AIR (Guj) 69

11) Manu/GJ/2796/2016

12) AIR 1969 SC 78 = (1968) 3 SCR 662

13) 2021 SCC OnLine Ker 9840

14) 2023 SCC OnLine Ker 1392

15) 2018 SCC OnLine Chh 63

16) (2019) 9 SCC 538

2

HON’BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

And

HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

C.R.P.Nos.2183; 701; 1797 AND 1254 of 2022

COMMON ORDER:

Is this Court conferring jurisdiction by a process of

judicial legislation or is this Court merely “ironing out the

creases” and clarifying the law is the question before this

Court?

The issue of jurisdiction of the Family Court-cum-7

th

Additional District Judge, Anantapuramu, for entertaining the

E.P.No.13 of 2016 in C.M.P.No.505 of 2012 , as raised in

C.R.P.No.2183 of 2022, is the core issue that is taken up at

the outset with the consent of the learned counsel for the

petitioner and the learned senior counsel appearing for the

respondent.

2) Sri M. Radhakrishna, learned counsel appeared for the

petitioner and Sri Challa Kodandaram Learned Senior

Counsel, as instructed by Sri V. Srikantha Rao, learned

counsel, appeared for the respondent. Both the learned

3

counsel submitted arguments on the competency and

jurisdiction of the Family Court-cum-7

th Additional District

Judge, Ananthapuramu, for passing orders in E.A.No.8 of

2022 in E.P.No.13 of 2016 in C.M.P.No.505 of 2012, dated

05.05.2022 due to the establishment of the Commercial

Courts in the State of Andhra Pradesh.

3) Sri M.Radhakrishna, learned counsel for the petitioner,

submitted that a sole arbitrator was appointed to decide the

disputes between the parties and he passed an Award, dated

13.10.2015, awarding certain amounts. The Award was

challenged by filing an application under Section 34 of the

Arbitration and Conciliation Act, 1996. Pursuant to further

litigation, the matter reached the Commercial Court, Bellary.

The litigation with regard to the said Award is still pending.

In the meanwhile E.P.No.13 of 2016 was filed by the Decree

Holder before the Principal District Judge, Anantapuramu, for

bringing to sale the properties belonging to the Judgment

Debtor. The same was transferred on 27.08.2019 to the

Family Court, Anantapuramu, where the matter is now

pending. Orders have been passed bringing the property for

sale. The present CRP is filed questioning the orders, dated

4

05.05.2022, in E.A.No.8 of 2022 in E.P.No.13 of 2016, by

which the Court ordered the issuance of sale certificate to the

Decree Holder.

4) The essential objection that is now raised before this

Court is that after the Commercial Courts Act, 2015 came

into force this Award can only be executed before the

Commercial Court and that the regular District Judge did not

have the jurisdiction to entertain this case. The value of the

Award is Rs.32.86 crores along with interest etc. Therefore,

learned counsel for the petitioner contends that this Award

has to be executed before the Commercial Court only and not

before the Principal District Judge, Anantapuramu or the

transferee Court, the Family Court-cum-7

th Additional

District & Sessions Court, Anantapuramu. Learned counsel

Sri Radhakrishna points out that it is an undisputed fact that

the Award was passed on 13.10.2015 and the Commercial

Courts Act came into force on 23.10.2015. He points out that

initially by virtue of G.O.Ms.No.74, dated 10.06.2016, the

Principal District and Sessions Courts in all the districts of

the State of Andhra Pradesh were designated as Commercial

Courts. But on 16.05.2019 by virtue of G.O.Ms.No.78, two

5

Special Commercial Courts were constituted in the cities of

Visakhapatnam and Vijayawada for the entire State of Andhra

Pradesh. As far as the disputes pertaining to Anantapuramu

are concerned they are under the jurisdiction of Commercial

Court, Vijayawada, as per this G.O. The contention of the

learned counsel, therefore, is that it is the Commercial Court,

Vijayawada, alone that can entertain this Execution Petition

and / or pass further orders.

5) The contention of the respondents on the other hand, as

far as jurisdiction is concerned, is that the Commercial

Courts do not have the power to execute an Arbitration

Award. Learned senior counsel contends that the execution

of an Award, even if the same relates to a dispute of

commercial value and commercial industry, can only be

before a regular Civil Court as per the provisions of Order 21

of the Code of Civil Procedure.

6) This is the sum and substance of the issue.

7) Sri M.Radha Krishna, learned counsel argues that the

7

th Additional District Judge is a coram non-judice and he

does not have jurisdiction or power or to entertain the E.P.

6

and to pass orders. He submits that since it is a question of

an inherent lack of jurisdiction he is questioning the same in

this CRP. He relies upon case law to argue that as the

question of inherent lack of jurisdiction is raised this Court

should decide this issue, since a decision on this matter

would obviate the need for any further hearing etc. He relies

upon Meenakshi Naidoo v. Subramaniya Sastri

1 to submit

that when the Court has no inherent jurisdiction the parties

cannot confer the same on the court. He also relies upon

Nammi Ganga Raju v. A. Ramakrishna

2, Sri Vigneswara

Swamy Devasthanam Sanghanm v. Commr.,

Endowments

3. He relies upon the judgment of Sushil

Kumar Mehta v. Gobind Ram Bohra

4, and in particular

para 26 to argue that if the Court has no jurisdiction at all

and it goes to the root of the matter, the appearance of the

parties will not cure the defect.

8) Specifically, with regard to the Commercial Courts Act

and the jurisdiction, learned counsel relies upon the

judgment of the Hon’ble Supreme Court of India in Jaycee

1

14 Indian Appeals 160

2

Laws (APH) 2002-12-107

3

2019 (6) ALT 435

4

Manu/SC/0593/1989 = (1990) 1 SCC 193

7

Housing Private limited and Others v. Registrar General,

Orissa High Court, Cuttack and Others

5, to argue that

once the Commercial Courts are constituted, it is only the

Commercial Court that has the jurisdiction to decide all the

disputes including arbitration disputes above the specified

value.

9) Relying upon Section 3 of the Commercial Courts Act,

2015 (for short “the Act”) he argues that the Andhra Pradesh

State Government has designated / constituted two Courts at

Visakhapatnam and Vijayawada to hear all the commercial

disputes over a specified value. Relying upon Section 10 of

the Act learned counsel submits that in cases of

arbitration disputes; jurisdiction has been conferred in case of

international commercial arbitration to the Commercial

Division of the High Court, and that as per Section 10 (3) of

the Act if the dispute is “other than the international

commercial arbitration” it shall be heard and disposed of by

the Commercial Court exercising jurisdiction. Relying on this

Section, it is strenuously argued that once the G.O. has been

issued constituting the Commercial Court at Anantapuramu,

5

Manu/SC/1363/2022

8

the execution can only be filed / continued before the said

Court at Anantapuramu. Learned counsel also relies upon

Section 15 of the Act to contend that all pending cases should

be transferred to the Commercial Courts. He relies upon

Sections 15 (1) to (4) of the Act for this submission. It is also

pointed out that even if the suits and applications are not

transferred by the Court an option is given under Section

15(5) of the Act to any of the parties to the litigation to

withdraw such suit or an application and to transfer the same

for trial or disposal to the Commercial Courts.

10) Learned counsel emphasized that under Section 15 (1)

of the Act pending suits and applications shall stand

transferred. He emphasizes the words “shall stand

transferred” and argues that a similar phrase fell for

interpretation under the provisions of the Recovery of Debts

and Bankruptcy Act, 1993 (for short “the RDDB Act”). He

relies upon the case of Punjab National Bank, Dasuya v.

Chajju Ram

6. He points out that this was a case pertaining

to an Execution Petition, which was pending before the Civil

Court. Since it is of the determined value the Supreme Court

6

(2000) 6 SCC 655

9

held that it had to be transferred to the Tribunal only for

execution.

11) Coming to the case law on the point learned counsel

relies upon the following judgments specifically to contend

various High Courts have already held that the execution of

the decree in a commercial dispute of the required value

should be by the Commercial Court only:

i) Vijay Cotton and Fiber Company v. Agarwal

Cotton Spinning Pvt. Ltd

7

. (Gujarat High Court)

ii) The decision of the Rajasthan High Court in ESS

Kay Fincorp Ltd. v. Suresh Choudhary

8

;

iii) A decision of the Delhi High Court reported in

Delhi Chemical and Pharmaceutical Works

Pvt. Ltd., v. Himgiri Realtors Pvt. Ltd.,

9 and

iv) The decision of the Gujarat High Court in, Arun

Kumar Jagatramka v. Ultrabulk A/S

10.

12) He also relies upon the Division Bench judgment of the

Gujarat High Court in the case of OCI Corporation v.

7

Manu/GJ/0062/2019

8

2019 SCC OnLine Raj 7770

9

2021 SCC OnLine Del 3603

10

2022 Latest Case Law 1221 Guj = 2022 AIR (Guj) 69

10

Kandla Export Corporation and Others

11, which was also

challenged in the Supreme Court, but the SLP was dismissed.

13) Learned counsel in particular emphasizes about the

findings of the Hon’ble Division Bench of the Delhi High Court

in Delhi Chemical and Pharmaceutical Works Pvt. Ltd. (9

supra) and points out that the Division Bench of the Delhi

High Court had considered the question threadbare and

specifically looked into the question whether the Execution

Petitions are “applications” within the meaning of the

Commercial Courts Act. He draws the attention of this Court

to paragraphs 34 to 41 of the reported judgment wherein the

Division Bench has held ultimately that even an application

for Execution shall lie before the Commercial Court only.

The Division Bench also relied upon Section 38 of the CPC

which empowers a Court which passes the Decree to execute

the same.

14) Relying upon the decision in Kandla Export

Corporation case (11 supra), learned counsel submits that

Sections 2, 6, 10 and 15 of the Commercial Courts Act were

considered by the Division Bench in interpreting the

11

Manu/GJ/2796/2016

11

Arbitration disputes and the Commercial Courts Act and

ultimately it was held in paragraph 11 that all applications

and appeals under the Arbitration and Conciliation Act, 1996

are required to be transferred to the Commercial Division of

the High Court of Gujarat, which is exercising original

jurisdiction. He points out that the SLP filed in this case

against the above mentioned judgment was dismissed by the

Hon’ble Supreme Court of India on 03.03.2017 in SLP

No.6557 of 2017.

15) The contentions of Sri M. Radhakrishna can be

summarized as follows:

a) The value of the Award is above Rs.32 crores and

it is far above the commercial value as defined in

the Commercial Courts Act.

b) Since the Commercial Court at Vijayawada is

constituted to exercise jurisdiction over the

District at Anantapuramu, the E.P. cannot be

entertained by the 7

th Additional District Judge

Court, Anantapuramu, and the said Court lacks

the “inherent jurisdiction” to pass any orders in

the matter.

12

c) He submits that as it is a case of inherent lack of

jurisdiction he can question the same at any stage

and that, therefore, he has raised the issue before

this Court.

He, therefore, submits that the CRP should be allowed

on this question itself.

16) In reply, Sri Challa Kodanda Ram, Learned Senior

counsel also argues the matter at length. It is his primary

contention that a decree can only be executed in the regular

Civil Courts only under Order 21 C.P.C. and not by the

Commercial Courts.

17) First and foremost he relies upon the Constitution

Bench judgment in the case of Dhulabhai v. State of M.P.

12

to argue that the exclusion of the jurisdiction of a civil court

cannot be inferred easily. He relies upon the conclusions of

the Constitution Bench in paragraph 32 for this primary

submission. He also relies upon two judgments of the Kerala

High Court reported in Shaji Augustine v Chithra Woods

12

AIR 1969 SC 78 = (1968) 3 SCR 662

13

Manors Welfare Association

13 and a decision of the learned

single Judge dated 07.03.2023 in the case of Beta Exim

Logistics (P) Ltd. v. Central Railside Warehouse Co.,

Ltd.,

14. He contends that Kerala High Court had analyzed

the provisions of the Commercial Courts Act and Arbitration

Act along with amendments in C.P.C. and rightly concluded

that the Commercial Courts Act only deals with the hearing

and disposal of Commercial disputes including arbitration

disputes with a commercial flavor. He contends that the

Commercial Act does not deal with execution applications

which are still to be filed before a regular Civil Court only. As

far as the judgment of the High Court in the cases of Kandla

Export case (11 supra) the learned Senior Counsel submits

that it was dealing with the international commercial

arbitration and the transfer of the Execution Petition to the

Commercial Division of the High Court, which was exercising

original jurisdiction. He also points out that the further

analysis carried out in the other judgments he refers to was

not looked into by the Division Bench of the Gujarat High

Court. Lastly, he submits that the dismissal of the SLP does

13

2021 SCC OnLine Ker 9840

14

2023 SCC OnLine Ker 1392

14

not amount to a pronouncement on the merits of the matters

nor does it means that the Hon’ble Supreme Court approved

the findings of the Gujarat High Court. He points out that

despite the amendments brought to the Commercial Courts

Act, Arbitration Act and the CPC etc., no provision has been

made conferring the power of “execution” on the Commercial

Courts. He, therefore, submits that the correct view has been

taken by the Kerala and Chhattisgarh High Courts and that

by a process of interpretation this Court cannot create a

jurisdiction and / or confer jurisdiction on a Court when the

legislature in its wisdom did not choose to confer the said

jurisdiction. He also relies upon South Eastern Coal-Fields

Ltd., v Tirupati Construction District Burhar

15. He points

out that the word “application” used in Section 15 of the Act

does not refer to an Execution Petition.

COURT:

18) This Court after considering the submissions notices

that Sri M.Radha Krishna, learned counsel laid heavy

emphasis on the discussion and the findings in Delhi

Pharmaceuticals case (9 supra) . In this judgment of the

15

2018 SCC OnLine Chh 63

15

Delhi High Court, the Division Bench held that the very

purpose of constituting Commercial Courts namely the

effective and quick adjudication of commercial disputes would

be lost if the Execution Petitions were relegated to regular

Civil Courts. The learned Judges held that a dispute does not

come to an end with the decision by the Tribunal or the Court

and that quietus is achieved only when the decree is

executed. They held that the disputes can also arise even

during the execution of the Arbitration Awa rd, and the

Commercial Court and Commercial Division would /

should have jurisdiction over Award or a decree of a specified

value. It was also noticed that the claimant or a party to the

lis is interested in realizing the fruits of the decree and to hold

that the Commercial Court would only have power to decide

the lis but not the power to execute the same to give the fruits

of the decree to the successful party, would sound the death

knell of the Commercial Court. The Court also considered the

fact that under Section 38 of C.P.C. the Court, which passed

the decree, shall have the power to execute the same. To the

same effect are the judgments of the Rajasthan High Court in

ESS Kay Fincorp case (8 supra) and the Gujarat High Court

16

judgment in Vijay Cotton and Fibre Company case (7

supra).

19) The Kerala and the Chhattisgarh High Courts have,

however, taken a different view. Learned single Judges of the

Kerala High Court have noted that there is a conscious

omission of the provisions relating to Execution under the

CPC in the Commercial Courts Act. With regard to the

judgment of the Kandla Export case (11 supra), which is

cited by Sri M.Radha Krishna, the learned single Judge held

that it is a case relating to an execution of international

Award and, therefore, it is not applicable. Learned single

Judge further held that if the doctrine of harmonious

construction is adopted, as held in the Kandla Export case

(11 supra) the Arbitration Act was held to be a special law

vis a vis the more general Commercial Courts Act. He relied

upon the earlier judgment reported in Shaji Augustine case

(13 supra) wherein Section 15 of the Act was interpreted to

hold that the meaning of the word ‘application’ occurring in

Section 15 of the Act does not refer to Execution Petition. To

the same effect is the Division Bench judgment of the

Chhattisgarh High Court reported in South Eastern Coal

17

Fields case (15 supra). Here the Division Bench held that

the word ‘application’ in Section 15 (2) would mean an

original application which was pending and not an Execution

Application.

20) In view of these contentions and the legal position, this

Court is proposing to examine Section 15 of the Commercial

Courts Act and Order 21 CPC. The contention urged by the

petitioner is that the Commercial Court alone should execute

a decree above the specified value while the contention of the

respondent is that the civil court alone should execute such a

decree as the Commercial Courts Act does not deal with Order

21 C.P.C., at all. The meaning of the word “application” in

Section 15 of the Act also assumes importance.

21) Section 15 (1) of the Act deals with the commercial

disputes pending in High Court. It is stated that all the suits

and applications shall be transferred to the Commercial

Division. Section 15 (2) is as follows:

“15 (2) All suits and applications, including applications

under the Arbitration and Conciliation Act, 1996 (26 of

1996), relating to a commercial dispute of a Specified Value

pending in any civil court in any district or area in respect of

18

which a Commercial Court has been constituted, shall be

transferred to such Commercial Court:

Provided that no suit or application where the final judgment

has been reserved by the Court prior to the constitution of

the Commercial Division or the Commercial Court shall be

transferred either under sub-section (1) or sub-section (2).”

22) Section 15 (3) states that when suit or any application

including an application under Arbitration and Conciliation

Act, 1996 stands transferred to the Commercial Court the

provisions of - “this Act shall apply to those procedures that

were not completed at the time of transfer”.

23) Section 6 is to the following effect –

“6. Jurisdiction of Commercial Court.—The Commercial

Court shall have jurisdiction to try all suits and

applications relating to a commercial dispute of a

Specified Value arising out of the entire territory of the

State over which it has been vested territorial

jurisdiction.”

24) Chapter-VI of the Commercial Court Act deals with the

amendments to provisions of Code of Civil Procedure 1908.

Section 16 (1) of the Act says that the provisions of CPC shall

in their application to any suit be amended as specified in the

schedule. Section 16 (2) of the Act states that Commercial

Courts shall follow “the provisions of CPC as amended by

19

this Court in the trial of a suit in respect of Commercial

dispute”. The Schedule, which is specified in the Act, in

particular amends the 1

st schedule of the CPC. In the

Schedule of the Act, Clause 4 (A) deals with Order 5 of the

CPC (Time for written statement). Clause 4 (B) deals with

pleadings in a commercial dispute (Order 6). Clause 4 (C)

deals with Order 7 Rule 2 (Again plaint). Clause 4 (D) deals

with Order 8 (written statement). Order 7 is also suitably

amended to deal with disclosure, discovery and inspection of

documents in suits before the Commercial Division of a High

court or a commercial Court. Order 11 Rule 1 deals with the

plaintiffs list of documents etc. Order 11 Rule 7 deals with

defendants list of documents and further deals with discovery

of interrogatories, inspection, admission and denial of

documents. Order 13A dealing with summary judgment is

also amended.

25) A reading of these sections and amendments in seriatim

shows that the intention of the legislature was only to modify

and streamline the procedures and practices relating to suits

and applications in suits etc., which are pending for disposal.

20

26) The heading of Chapter VI of the Act is – “Amendments

to the Provisions of the Code of Civil Procedure, 1908”. The

amendments to the CPC, refer to the 1

st schedule and

specifically to Orders 5, 6, 8, 11, 13 (A) of CPC etc., and in

addition a newly incorporated Order 15(A) is brought into

force. All of them deal with trial and disposal of a suit

only. None of the other provisions of the CPC are touched or

amended including Order 21 CPC.

27) In the opinion of this Court this deliberate silence by the

legislature, in spite of the need for a law on the subject for

quick and efficient disposal of the cases, including

commercial disputes, being on everyone's mind makes it very

clear that the legislature in its wisdom decided to speed up

the trial and disposal of the cases in the commercial court

alone. Time and again the Hon’ble Supreme Court of India

and various courts have spoken about the need for quick

disposal of domestic and international commercial disputes.

Hence a conscious effort was made by the Legislature to

change the provisions of CPC regarding the trial and disposal

of cases for a quicker disposal of the suits and applications.

In this Court’s opinion and as per settled law the assumption

21

is that the legislature did not make a mistake. It did what it

set out to do – to speed up trials. The silence or failure to

refer to Order 21 does not mean that the Commercial Court

cannot execute a decree. A purposive interpretation has to be

given to the provisions of the Act. If it is not so interpreted

the Commercial Courts will be powerless in many aspects. If

the arguments of the learned senior counsel for the

respondent are further extended and as other provisions of

C.P.C. are also not touched upon / referred to it would mean

– that the Commercial Court cannot add or delete parties

(Order-I); cannot bring on record the legal representatives

(Order 22); cannot grant injunctions (Order 39); order

attachment or arrest before judgment (Order 38) and so on.

These are a few illustrative aspects that are touched upon.

This would virtually render the Commercial Courts non -

effective and virtually defeat their purpose / objective. Can it

be said that since Order 38 or Order 39 are not mentioned the

Commercial Court cannot grant an interim order? This would

lead to a collapse of these Courts.

28) The special purpose – namely the quick disposal of

commercial cases- and the purpose behind the Act is also

22

strengthened by the contents of Section 6 which states that

the Commercial Court can be conferred jurisdiction over the

entire State unlike the restriction in Section 15 to Section 20

of CPC etc. The appeals pending in the Commercial Appeal

Division are also to be disposed within six months as per Sec

16 of the Act. The clear bar against the revision application or

petition against interlocutory application notwithstanding

anything to the contrary in law in Section 9 of the Act, further

strengthens this Court's conclusions that the emphasis was

on quick and early disposal of cases.

29) Section 16 of the Act is as follows:-

“16. Amendments to the Code of Civil Procedure, 1908 in

its application to commercial disputes.—(1) The provisions

of the Code of Civil Procedure, 1908 (5 of 1908) shall, in

their application to any suit in respect of a commercial

dispute of a Specified Value, stand amended in the manner

as specified in the Schedule.

(2) The Commercial Division and Commercial Court shall

follow the provisions of the Code of Civil Procedure, 1908 (5

of 1908), as amended by this Act, in the trial of a suit in

respect of a commercial dispute of a Specified Value.

(3) Where any provision of any Rule of the jurisdictional

High Court or any amendment to the Code of Civil

Procedure, 1908 (5 of 1908), by the State Government is in

conflict with the provisions of the Code of Civil Procedure,

1908 (5 of 1908), as amended by this Act, the provisions of

23

the Code of Civil Procedure as amended by this Act shall

prevail.”

30) Section 16(3) makes it clear that the amendments to the

CPC made by this Act shall “prevail” over amendments made

by the State Government or over the jurisdictional High

Courts Rules. This is again done to facilitate quick disposal

of suits and applications. Even the High Court Rules have to

give way to these amendments.

31) Further, in this Court’s opinion the word ‘application’

occurring in Section 15 of the Act is also not limited to

original applications only or to application in suits. Support

can be drawn from the provisions of Order 21 CPC itself

dealing with execution. Order 21 Rule 10 starts with the

words – “Application” for Execution. Rule 11 says an oral

“application” is permissible. Order 21 Rule 11(2) talks of a

written “application” Similarly Rules 11A, 12, 13, 16 talk of

“applications” for execution. The use of the words suits and

applications including applications under the Arbitration Act

1996” make it clear that it is not merely limited to suits and

arbitration applications only. An inclusive definition is given

to include all “applications” under Section 15. The intention

24

of the Legislature is also clear from a reading of Section 10 of

the Commercial Courts Act, which deals with applications

and appeals under the Arbitration Act. They are dealt with

under this Section. This Court, therefore, holds that the word

“application” in Section 15 includes execution applications

also. The inclusive definition in Section 15(1) makes this

clear.

32) Even with regard to enforcement and execution this

Court feels that the Arbitration Act, 1996 made the issue

clear since the CPC is not applicable per se to the proceedings

before an Arbitration Tribunal. Section 36 of the Arbitration

and Conciliation Act as it stood earlier was as follows:

“36 Enforcement:- Where the time for making an

application to set aside the arbitral award under section

34 has expired, or such application having been made, it

has been refused, the award shall be enforced under

the Code of Civil Procedure 1908 (Act 5 of 1908) in

the same manner as if it were a decree of the Court.”

33) Section 36 after amendment by Act 3 of 2016 is as

follows:

36. Enforcement.-(1) Where the time for making an

application to set aside the arbitral award under section

34 has expired, then, subject to the provisions of sub-

section (2), such award shall be enforced in

accordance with the provisions of the Code of Civil

25

Procedure, 1908 (5 of 1908), in the same manner as

if it were a decree of the court.

In view of the non-applicability of C.P.C. to Arbitrations

this clarity was given with respect to execution of Awards in a

Civil Court. On the other hand this 2015 Act is called the

Commercial Courts Act itself.

34) The purpose and intent of the Act is to provide for the

constitution of Commercial Courts for adjudicating

Commercial disputes of specified value and matters

connected therewith and incidental thereto. Hence, a

purposive and meaningful interpretation must be given –

which means that quick disposal of commercial cases would

include quick disposal of execution applications for enforcing

the judgments passed. The conclusions of the Hon’ble

Supreme Court of India in Jaycee Housing Private limited

case (5 supra) in para 10 and 11 also supports this view.

“10. Thus, the Objects and Reasons of Commercial

Courts Act, 2015 is to provide for speedy disposal of the

commercial disputes which includes the arbitration

proceedings. To achieve the said Objects, the legislature

in its wisdom has specifically conferred the jurisdiction in

respect of arbitration matters as per Section 10 of the

Act, 2015. At this stage, it is required to be noted that the

Act, 2015 is the Act later in time and therefore when the

26

Act, 2015 has been enacted, more particularly Sections 3

& 10, there was already a provision contained in Section

2(1)(e) of the Act, 1996. As per settled position of law, it is

to be presumed that while enacting the subsequent law,

the legislature is conscious of the provisions of the Act

prior in time and therefore the later Act shall prevail. It is

also required to be noted that even as per Section 15 of

the Act, 2015, all suits and applications including

applications under the Act, 1996, relating to a

commercial dispute of specified value shall have to be

transferred to the Commercial Court. Even as per Section

21 of the Act, 2015, Act, 2015 shall have overriding

effect. It provides that save as otherwise provided, the

provisions of this Act shall have effect, notwithstanding

anything inconsistent therewith contained in any other

law for the time being in force.

11. Therefore, considering the afore-stated provisions of

the Act, 2015 and the Objects and Reasons for which the

Act, 2015 has been enacted and the Commercial Courts,

Commercial Division and Commercial Appellate Division

in the High Courts are established for speedy disposal of

the commercial disputes including the arbitration

disputes, Sections 3 & 10 of the Act, 2015 shall prevail

and all applications or appeals arising out of arbitration

under the provisions of Act, 1996, other than

international commercial arbitration, shall be filed in and

heard and disposed of by the Commercial Courts,

exercising the territorial jurisdiction over such arbitration

where such commercial courts have been constituted. If

the submission on behalf of the Appellants that of Act, 1

civil other than the international commercial arbitration,

shall lie before the principal civil Court of a district, in

that case, not only the Objects and Reasons of enactment

27

of Act, 2015 and establishment of commercial courts

shall be frustrated, even Sections 3, 10 & 15 shall

become otiose and nugatory. If the submission on behalf

of the Appellants is accepted, in that case, though with

respect to other commercial disputes, the applications or

appeals shall lie before the commercial courts established

and constituted Under Section 3 of Act, 2015, with

respect to arbitration proceedings, the applications or

appeals shall lie before the principal civil Court of a

district. There cannot be two fora with respect to different

commercial disputes.

Under the circumstances, notification issued by the State

of Odisha issued in consultation with the High Court of

Orissa to confer jurisdiction upon the court of learned

Civil Judge (Senior Division) designated as Commercial

Court to decide the applications or appeals arising out of

arbitration under the provisions of Act, 1996 cannot be

said to be illegal and bad in law. On the contrary, the

same can be said to be absolutely in consonance with

Sections 3 & 10 of Act, 2015. We are in complete

agreement with the view taken by the High Court holding

so.”

35) There cannot be two courts/fora:– one for the dispute

resolution and one for execution of the decree passed.

36) Section 38 of C.P.C. clearly states that the decree may

be executed by the Court that passed it or the Court to which

it was sent for execution. Therefore, this Court holds that a

commercial court can execute a decree passed by itself or

28

even execute a decree sent for execution under Section 15 of

the Commercial Courts Act or by transfer from another

Commercial Court.

37) For all the above mentioned reasons it is held that the

Commercial Court has the jurisdiction to execute its own

decree or a decree transferred / sent to it, where the value is

above the specified limit.

38) This Court respectfully agrees with the views of the

Kerala and Chhattisgarh High Courts and respectfully

disagrees with the view taken by the other learned Judges of

the Gujarat, Delhi and other High Courts.

39) In conclusion this Court would like to again rely upon

para 35 of the Division Bench judgment of the Gujarat High

Court reported in OCI Corporation case (11 supra). The

question that was specifically raised in that matter was

whether the Execution Petition would fall within the ambit of

Section 15 (2) of the Commercial Courts Act and which court

would have jurisdiction. This was ultimately answered by the

Division Bench by considering the law on the subject. In

29

para-10 the following question as posted and in para-11 the

answer is given as follows:

“10. Now, next question posed for consideration of this

Court is whether execution petitions pending before the

concerned District Court as on 23.10.2015 which are filed

for execution / enforcement of the foreign award are

required to be transferred, and if yes, to which Court?

11. The sum and substance of the above discussion

would be,

"(1) Where the subject matter of an arbitration is a

commercial dispute of a specified value and if such

arbitration is international commercial arbitration, all the

applications or appeals arising out of such arbitration

under the provisions of the Arbitration and Conciliation

Act, 1996 shall be heard, decided and disposed of by the

Commercial Division where such commercial Division has

been constituted in the High Court i.e. in the present case

High Court of Gujarat.

(2) Where the subject matter of an arbitration is a

commercial dispute but not of a specified value and if

such arbitration is international commercial arbitration,

considering the provisions of Arbitration and Conciliation

(Amendment) Act, 2015 the same shall be heard, decided

and disposed of by the concerned High Court.

(3) Where the subject matter of an arbitration is a

commercial dispute of a specified value and if such

arbitration is other than international arbitration, all the

applications or appeals arising out of such arbitration

under the provisions of the Arbitration and Conciliation

Act, 1996 shall be filed in and heard, decided and

30

disposed of by the Commercial Court exercising territorial

jurisdiction over such arbitration where such commercial

court has been constituted."

Considering section 15 of the Commercial Courts Act, all

the applications/appeals in question under the

Arbitration and Conciliation Act, 1996, therefore are

required to be transferred to the concerned Commercial

Division of the High Court of Gujarat or before the

Gujarat High Court or before the concerned commercial

court and as observed hereinabove and as the case may

be.”

40) The SLP filed against this judgment was also dismissed.

The essence and ratio of this judgment is that arbitration

Awards can be executed by the Commercial Court /

Commercial Division of the High Court respectively. This view

supports the conclusion of this Court.

41) The next and equally important question that arises out

this discussion is about the progress of this particular award

/ execution in various Courts.

42) As far as the history of the Execution Proceedings is

concerned, the following dates are important:

i) Award was passed by the Arbitrator on 13.10.2015.

ii) On 23.10.2015 the Commercial Courts Act came into

force.

31

iii) On 18.01.2016 the respondent DHr., filed E.P.No.13

of 2016 before the Principal District Judge,

Anantapuramu.

iv) On 10.06.2016 the 1

st G.O.MS.No.74 was issued by

the State of Andhra Pradesh, by which all the

Principal District and Sessions Courts were

designated as Commercial Courts in the State of

Andhra Pradesh.

v) On 16.05.2019 the G.O.Ms.No.78 was issued

constituting only two commercial Courts in the State

of Andhra Pradesh at Vijayawada and

Visakhapatnam.

43) It is therefore, clear that by 18.01.2016 when the

E.P.No.13 of 2016 was filed the Commercial Courts were not

formally constituted in the State of Andhra Pradesh.

44) On 10.06.2016 by virtue of G.O.Ms.No.74 all the Courts

of the District and Sessions Courts in the State of Andhra

Pradesh were designated as Commercial Courts.

45) From 10.06.2016 till 15.05.2016 this position

continued. However, with effect from 16.05.2019 only two

32

Commercial Courts were designated as having jurisdiction

over the 13 districts of the State of Andhra Pradesh.

(G.O.Ms.No.78)

46) The Family Court, Anantapuramu District was

entertaining the present E.P., consequent on the transfer of

the case by the District Judge, Anantapuram on 27.08.2019.

47) Thereafter, the matter was pending before the 7

th

Additional District Judge-cum-Family Court, Anantapuramu.

48) In view of the conclusions arrived at by this Court that it

is only the Commercial Courts that have the jurisdiction and

authority to execute the judgment and entertain the

Execution Petition, this Court has to hold that with effect

from 16.05.2019 it is only the Commercial Court at

Anantapuram, which could entertain the Execution Petition

or pass orders thereon. No other Court could pass orders, in

view of the conferment of the exclusive jurisdiction on the

Commercial Court at Anantapuramu.

49) The counsel for the revision petitioner argues that the

orders are void ab intio and that no further declaration is

necessary. According to him with effect from 16.05.2019 no

33

other Courts, except the Commercial Court at Anantapuram ,

has the jurisdiction and consequently the 7

th Additional

District Court-cum-Family Court, Anantapuram is a corum

non-judice. He cites a large volume of case law on this aspect

including Meenakshi Naidoo case (1 supra); Nammi Ganga

Raju case (2 supra) and other cases to argue that the defect

of jurisdiction strikes at the very root of the authority of the

Court to pass the order and that the “participation” of the

revision petitioner or the failure to raise an objection will not

clothe the Family Court, Anantapuramu with jurisdiction. He

also argues that the question relating to such inherent lack of

jurisdiction can be raised in any proceeding and even in

collateral proceeding. According to him all the orders passed

after 16.05.2019 by the Family Court, Anantapuramu are a

nullity in the eye of law. He submits that he has raised this

ground in the CRP, which is taken up as a lead case and is

arguing the matter.

50) Sri Challa Kodanda Ram, learned senior counsel

defended this case and argued that the submissions made by

Sri M. Radha Krishna do not meet the tests laid down in

Dhulabhai case (12 supra). He also argues that the

34

petitioner had adequate and proper remedies under the

provisions of the CPC to raise the issues and that instead of

doing so he filed the present CRP No.2183 of 2022 under

Article 227 of the Constitution of India. He submits that this

Court will have to exercise its very restricted jurisdiction and

the discipline necessary to reject the application under Article

227 of the Constitution of India when there is a remedy of

appeal provided for. He also relies upon extensive case law

including Virudhunagar Hindu Nadargal Dharma

Paribalana Sabai v. Tuticorin Educational Society

16 to

argue this point.

51) While the submissions of the learned senior counsel

appear to be attractive the fact remains that in view of the

conclusion reached by this Court about the inherent lack of

jurisdiction in the Family Court, Anantapuramu, with effect

from 16.05.2019, this Court need not deter itself or impose

restrictions on its power. The conclusion reached by this

Court is that all the actions taken in E.P.No.13 of 2016 on

and from 16.05.2019 are bad in law. These orders cannot be

sustained under law. If the orders are non-est no further

16

(2019) 9 SCC 538

35

declaration is necessary. The E.P. cannot be continued in the

Court of the 7

th Additional District Judge-cum-Family Court,

Anantapuramu.

52) In view of the power vested in this Court under Section

15(3) of the Commercial Courts Act, and in view of the

submissions made by both the learned counsel it is directed

that the E.P.No.13 of 2016 shall be immediately transferred to

the Commercial Court, Vijayawada, which has the jurisdiction

over the Anantapuramu District. It is reiterated that all

orders passed after 16.05.2019 in the Execution Petition are

non-est in the eye of law. This Court is conscious of the

Judgment in Dhulabhai case (12 supra), wherein it is held

that the exclusion of Civil Court’s Jurisdiction should not be

lightly presumed or entered. By virtue of the case law and the

provisions of the Commercial Court’s Act, this Court has to

conclude that as it is a case of an inherent lack of jurisdiction

and a statutory embargo or bar the judgment of the

Constitution Bench in Dhulabhai case (12 supra) will not

apply to the facts and circumstances of the case. As it is a

limitation on jurisdiction due to a statute; the Family Court,

36

Anantapuramu, cannot take up the cause or the matter. Its

orders are a nullity in the eye of law.

53) Therefore, the following conclusions are reached by

ironing out the creases:

a) The Commercial Court alone is competent to execute

decrees, which are above the specified value . The

regular Civil Court will not have the jurisdiction to

entertain such Execution Petitions with effect from

16.05.2019 in the State of Andhra Pradesh.

b) It is only the Commercial Court, Vijayawada or the

Commercial Court at Visakhapatnam which can

entertain the Execution Petitions if they are above the

specified value in view of the G.O.Ms.No.78.

c) All orders passed after 16.05.2019 are orders passed by

a coram non-judice. They suffer from an inherent lack of

jurisdiction and they are held to be per se bad in law.

d) The pending E.P.No.13 of 2016 shall be transferred to

the Commercial Court, Vijayawada, and both the parties

are given liberty to start the proceedings afresh from the

said date i.e., 16.05.2019.

37

54) In view of these findings CRP No.2183 of 2022 is

allowed, since it questions the order, dated 05.05.2022, which

is an order without jurisdiction. Similarly, CRP No.701 of

2022 is also allowed as the order dated 17.01.2022 is held to

be passed by a Court which has no jurisdiction.

C.R.P.No.1797 of 2022 is also allowed as it deals with the Sale

Certificate, dated 18.08.2022, which is granted by a Court

which has no jurisdiction. C.R.P.No.1254 of 2022 is also

allowed as it questions the order, dated 18.01.2022, setting

aside the sale of D & E properties in E.P.No.13 of 2016. No

costs.

55) Consequently, the Miscellaneous Petitions pending, if

any, in these Civil Revision Petitions shall also stand closed.

__________________________

D.V.S.S.SOMAYAJULU, J

_________________________________

DUPPALA VENKATA RAMANA, J

Date:12.09.2023

Note: LR copy be marked.

Issue CC in 7 days

B/o

Ssv

38

THE HON’BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

and

HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

C.R.P.Nos.1254; 701; 1797 AND 2183 of 2022

Dated: .09.2023

Ssv