Beyond Section 9: The Unexplored Remedy of Section 47, Civil Procedure Code for the Losing Party in Arbitration

Introduction

The arbitration landscape in India has witnessed a significant and welcome development with the Supreme Court’s decision in Home Care Retail Marts (P) Ltd. v. Haresh N. Sanghavi¹. The judgment resolved a long-standing conflict among the High Courts on a pointed question of law: Can a party that has lost in arbitration maintain a petition under Section 9, Arbitration and Conciliation Act, 1996 (Arbitration Act) at the post-award stage? The Bombay, Delhi, Madras, and Karnataka High Courts had said no. The Telangana, Gujarat, and Punjab and Haryana High Courts had said yes. The Supreme Court, has now settled the debate in favour of the unsuccessful party.

This article explores another remedy available to the losing party rooted not in the Arbitration Act but in the Civil Procedure Code, 1908 (CPC). That remedy arises from the combined operation of Section 36, Arbitration Act and Section 47 CPC to preserve the fruits of the award. This article examines the findings in the Home Care case, the unexplored remedy under Section 47 CPC, its scope relative to Section 9, and its practical significance for the losing party in arbitration.

Findings in home care retail marts: What the Supreme Court held and why it is right

The question before the Supreme Court was whether the expression “a party” in Section 9, Arbitration Act could be contextually narrowed, at the post-award stage, to mean only the successful party. The argument against the unsuccessful party was built largely on the Bombay High Court’s decision in Dirk India (P) Ltd. v. Maharashtra State Electricity Generation Co. Ltd.², which reasoned that the purpose of a post-award Section 9 is to protect the “fruits of arbitral proceedings”. Since a losing party has no fruit to protect, it was said to have no standing to seek interim relief.

The Supreme Court rejected this reasoning on three principal grounds. Firstly, the word “party” is defined in Section 2(h) to mean “a party to an arbitration agreement”. Neither the definition nor the section draws any distinction between a successful and an unsuccessful party. To read such a restriction into the statute would amount to judicial amendment. Secondly, Parliament had consciously departed from Article 9 of the United Nations Commission on International Trade Law (UNCITRAL) Model Law, which does not contemplate any post-award interim measures at all, and had expanded the scope of Section 9 to cover the post-award stage. When Parliament made this deliberate expansion, it did not restrict access to that enlarged remedy. Thirdly, the court relied on the Constitution Bench’s decision in Gayatri Balasamy v. ISG Novasoft Technologies Ltd.³, which recognised that courts under Section 34 can now modify an award in certain circumstances. Once modification is on the table, the foundational premise of Dirk India case collapses entirely.

The court also reaffirmed that Section 9 operates in a sphere distinct from Sections 34 and 36. Those provisions address remedies against or in relation to an award. Section 9 ensures protection of the subject-matter or the amount in dispute. To deny it to the unsuccessful party would leave that party entirely remediless pending its Section 34 challenge. However, as the court made clear, the threshold for granting interim relief to an unsuccessful party will be higher than it is for a successful party. The doors are open, but entry is not automatic.

This was followed by the Bombay High Court in ONGC Ltd. v. Larsen & Toubro Ltd.⁴

A hidden remedy: Section 47 CPC

While the judgment in the Home Care case held that Section 9 can be resorted to by an unsuccessful party under certain circumstances, it did not consider a separately available remedy for the unsuccessful party rooted in the CPC. This remedy arises from the combined operation of Section 36, Arbitration Act and Section 47 CPC.

Under Section 36, Arbitration Act, an arbitral award becomes enforceable as if it were a decree of the court once the time for filing a Section 34 challenge has expired without any application being made (not before the expiry), or upon disposal of a Section 34 application where no stay has been granted. It is at that point that the award attains the character of an executable decree and the entire execution machinery of the CPC, including Section 47, becomes available. The timing is important: Section 47 is not available from the moment the award is made. It becomes available only when the award becomes executable under Section 36.

Section 47 CPC confers on the court executing a decree the plenary power to determine all questions arising between the parties relating to the execution, discharge, or satisfaction of the decree. This power can be invoked not only by the decree-holder but also by the judgment-debtor. The pivotal point, established by the Supreme Court in M.P. Shreevastava v. Veena⁵, is that the judgment-debtor can invoke Section 47 CPC even without any execution petition having been filed by the decree-holder.

In the M.P. Shreevastava case, a husband had obtained a decree for restitution of conjugal rights. The wife offered to comply but was refused. She then applied to have the decree recorded as satisfied. The husband contended that since he had not filed an execution petition, there was no “court executing the decree” before which her application could lie. The Supreme Court rejected this argument categorically. Section 47, it held, enacts the salutary rule that all questions relating to execution, discharge, or satisfaction of a decree shall be determined in execution proceedings and not by a separate suit. The power is available to either party. Pendency of an execution application by the decree-holder is not a precondition for the judgment-debtor to approach the executing court.

Scope of Section 47 CPC in the arbitration context

Assume a case where a foreign award grants declaratory relief to the award-holder, who need not to approach the execution court. The losing party need not wait for the winning party to move first; rather, it may file an application under Section 47 CPC and obtain appropriate interim orders from the court, depending on the circumstances, once the award becomes executable or once an application under Section 34 is filed.

In the arbitration context, the Supreme Court has clearly delineated the scope of such objections. In Vidya Drolia v. Durga Trading Corpn.⁶, the three-Judge Bench laid down that the Arbitral Tribunal is the preferred first authority on questions of non-arbitrability, with the court having a “second look” at the challenge stage under Section 34. The enforcement stage under Section 36 was not treated as a further window for substantive challenge. This structural framework was confirmed by the Supreme Court in Electrosteel Steel Ltd. v. Ispat Carrier (P) Ltd.⁷, which held that a Section 47 objection against an arbitral award lies only on limited grounds like the award being a nullity or void for want of jurisdiction. Errors of law or fact in the award cannot be the basis of a Section 47 objection in the arbitration context. The executing court cannot go behind the decree to examine its correctness on the merits.

That said, the scope of Section 47 in a broader sense, and the powers exercisable by the executing court under Order 21 CPC, are considerably wider than those available to a court exercising jurisdiction under Section 9, Arbitration Act. Section 9 empowers the court to grant interim measures of protection that it considers just and convenient. It is a discretionary, protective remedy operating before or alongside the arbitral process. Section 47, by contrast, is a question-determining provision that enables the executing court to resolve all disputes relating to the execution, discharge, or satisfaction of the decree. The executing court under Order 21 has powers to order disclosure of assets, attach property, appoint a Receiver, and take a range of coercive steps, provided a prima facie case is made out.

However, under Section 9, the applicant must satisfy the court of a prima facie case, balance of convenience, and likelihood of irreparable harm. The same prima facie threshold applies to Section 47 proceedings. The Supreme Court in Satyawati v. Rajinder Singh⁸ held clearly that execution is a right of the decree-holder and should not be stayed casually. The court must be satisfied of prima facie merit before entertaining an objection under Section 47 or granting a stay of execution pending its determination. This was reiterated by the Supreme Court in MMTC Ltd. v. Anglo-American Metallurgical Coal (P) Ltd.⁹, where it was held that unless prima facie ground indicating nullity or jurisdictional infirmity are made out, even entertaining an objection under Section 47 would amount to an abuse of process. Thus, while the powers of an executing court are structurally wider than those of a Section 9 court, the threshold for the losing party to clear is similar.

Under Section 37, Arbitration Act, orders passed under Section 9 are appealable. One of the concerns raised in Home Care case was that permitting unsuccessful parties to file Section 9 petitions would multiply proceedings and erode the finality the Act seeks to protect. That concern does not arise in the same way under Section 47 CPC. Orders passed by the executing court under Section 47 are not subject to the appellate mechanism under Section 37, Arbitration Act. The Section 47 route therefore operates within its own procedural framework without feeding into the cycle of arbitration-specific appeals.

The availability of both Sections 9 and 47 also raises a concern about the multiplication of jurisdictions. An execution petition under Section 36 read with Order 21 CPC can be filed in any court within whose jurisdiction the judgment-debtor has assets. If a parallel Section 9 petition can also be filed in any such court, the door is opened to conflicting orders from different courts over the same subject-matter and to deliberate forum selection by the unsuccessful party. Section 42, Arbitration Act, which seeks to consolidate jurisdiction in the court where the first application under Part I was made, offers only a partial answer and may not always reach post-award Section 9 applications that are framed to avoid its operation. It follows from the internal logic of the Act that the window during which an unsuccessful party can invoke Section 9 at the post-award stage ought to be narrow. That window logically runs from the date of the award until the expiry of the Section 34 limitation period, which is also the earliest point at which an execution petition can lawfully be filed. Once the award becomes executable and the execution forum opens up, the proper vehicle for the losing party is Section 47 CPC before the executing court.

Under the old Arbitration Act, 1940, Section 18 expressly confined interim measures to the successful party. The legislature made no such restriction under the 1996 Act. That deliberate omission, read alongside the broad but carefully bounded power under Section 47 CPC and the precedent in M.P. Shreevastava case, confirms that the losing party in arbitration has meaningful avenues that have not always been recognised. At the same time, those avenues operate within defined limits that serve the Act’s overarching commitment to finality and minimal judicial intervention.

Conclusion

The Supreme Court’s decision in Home Care case¹⁰ is a welcome and correct resolution of a long-standing conflict. The court was right to hold that the expression “a party” in Section 9 cannot be contextually modulated depending on the outcome of arbitral proceedings. The remedy under Section 9 is available to any party to the arbitration agreement at the post-award stage, subject to the higher threshold that applies to unsuccessful parties.

However, a remedy that operates in an entirely different statutory framework. Section 47 CPC, read with Section 36, Arbitration Act and the Supreme Court’s decision in M.P. Shreevastava, gives the losing party the right to approach the executing court, once the award becomes executable, to raise questions relating to the award’s execution, discharge, or satisfaction. This right does not depend on the winning party filing an execution petition first, and it is not subject to Section 37 appeals. As per Electrosteel case, that right is available even without a prior Section 34 challenge, provided the conditions are satisfied.

The two remedies serve different purposes and operate at different stages. Section 9, now accessible to unsuccessful parties as clarified by Home Care case, offers discretionary protective relief during the interregnum between the award and the expiry of the Section 34 period. Section 47 CPC, available after the award becomes executable, offers the losing party a structural remedy within the execution forum with powers that are in their nature wider than those available under Section 9, though the grounds on which that remedy can succeed in the arbitration context are narrow.