Orissa High Court
M/S. Sundaram Finance Ltd vs M/S Dinesh Das And Sons Mines And .... ... on 9 January, 2026
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT,
CUTTACK
Date: 17-Jan-2026 16:26:20
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.7456 of 2024
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
M/s. Sundaram Finance Ltd. .... Petitioner(s)
-versus-
M/s Dinesh Das and Sons Mines and .... Opposite Party (s)
Steels Pvt. Ltd. and Ors.
Advocates appeared in the case throughHybrid Mode:
For Petitioner(s) : Mr. S. Mukunth, Sr. Adv.
Along with
Mr. A.R. Sethy, Adv.
For Opposite Party (s) : Mr. Soumya Ranjan Mohanty, Adv.
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-14.11.2025
DATE OF JUDGMENT:-09.01.2026
Dr. Sanjeeb K Panigrahi, J.
1. In this Writ Petition, the petitioner seeks a direction from this Court to set aside the order dated 15.12.2023 issuing notice in the Section 17(2) execution, and to command the Commercial Court to forthwith transmit the arbitral attachment order for immediate execution, without entertaining Section 47 objections.
Page 1
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT,
CUTTACK
Date: 17-Jan-2026 16:26:20
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the caseare asfollows:
(i) The petitioner is a Non-Banking Finance Company incorporated under
the Indian Companies Act, 1913, engaged in the business of extending loan facilities for purchase and refinance of vehicles, machinery and equipment, having its head office at Chennai and a branch office at Bhubaneswar.
(ii) The opposite parties, described as borrower and guarantors, availed a loan of Rs. 18,00,000 on 30.11.2018 under a loan agreement, repayable along with finance charges in 22 monthly instalments. Disputes arose between the parties on account of alleged default in repayment.
(iii) The petitioner claims that the loan account was classified as a Non-
Performing Asset and that the hypothecated machinery could not be repossessed, whereas the opposite parties dispute the petitioner's subsequent actions and remedies.
(iv) An Arbitral Tribunal was constituted at Chennai pursuant to the arbitration clause contained in the loan agreement, and a retired District Judge was appointed as the Sole Arbitrator to adjudicate the disputes arising out of the loan transaction.
(v) During the pendency of the arbitration proceedings, the petitioner filed an application under Section 17 of the Arbitration and Conciliation Act, 1996 seeking interim protection by way of attachment of immovable property alleged to be connected with the opposite parties, on the ground of failure to furnish security.
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(vi) The Arbitral Tribunal passed an interim order dated 03.09.2021 directing attachment of the immovable property specified in the application, subject to non-furnishing of security within the time stipulated.
(vii) The immovable property sought to be attached was situated within the territorial jurisdiction of the District Judge, Khurda at Bhubaneswar, and accordingly the Arbitral Tribunal transmitted the order of attachment to the said court for implementation.
(viii) The District Judge, Khurda endorsed the order for presentation before the Senior Civil Judge, Commercial Court, Bhubaneswar, and the petitioner was required to file appropriate proceedings for enforcement of the arbitral order.
(ix) The petitioner thereafter filed an execution petition under Section 17(2) of the Arbitration and Conciliation Act, 1996 read with Section 136 of the Code of Civil Procedure before the Commercial Court, seeking execution of the attachment through court process.
(x) By order dated 15.12.2023, the learned Senior Civil Judge, Commercial Court, Bhubaneswar directed issuance of notice to the respondents in the execution proceedings.
(xi) Pursuant to issuance of notice, the opposite parties entered appearance before the Commercial Court and filed objections under Section 47 of the Code of Civil Procedure, raising issues relating to the executability of the interim order.
(xii) The present writ petition has been filed challenging the order dated 15.12.2023 directing issuance of notice, while the execution proceedings Page 3 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Jan-2026 16:26:20 and objections under Section 47 CPC remain pending before the Commercial Court.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions:
(i) The petitioner contends that an interim order passed by the Arbitral Tribunal under Section 17(1) is statutorily deemed to be an order of a civil court by virtue of Section 17(2) and is enforceable in the same manner as a court order without any further adjudication.
(ii) It is urged that the enforcing court is required to perform only a ministerial function and cannot assume appellate or supervisory jurisdiction over the arbitral order, as any challenge to such order lies exclusively under Section 37 of the Act.
(iii) The petitioner asserts that Section 136 of the Code of Civil Procedure mandates mechanical transmission and execution of attachment when the property is situated outside the territorial jurisdiction, leaving no discretion to issue notice or conduct hearings.
(iv) The issuance of notice to the respondents is assailed as contrary to the legislative intent of minimizing judicial interference in arbitral proceedings and as an action that frustrates the efficacy of interim protection granted by the tribunal.
(v) It is contended that the learned Commercial Court, by issuing notice, has effectively reopened the merits of the arbitral order and assumed a role not contemplated under Section 17(2), thereby acting without jurisdiction.
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(vi) The petitioner argues that delay caused by issuance of notice enables the respondents to alienate or encumber the property, defeating the very purpose of attachment before judgment and undermining creditor protection.
(vii) The analogy is drawn with enforcement proceedings under Section 14 of the SARFAESI Act to contend that enforcement of statutory interim measures is purely ministerial and does not require hearing of the borrower.
(viii) The petitioner further contends that applications under Section 47 of the Code of Civil Procedure are not maintainable in the enforcement of interim orders, as such proceedings do not involve execution of a decree or adjudication of rights.
(ix) It is submitted that allowing objections at the enforcement stage would open floodgates to frivolous litigation, dilute the effectiveness of arbitral interim measures and defeat the commercial purpose of the Act.
(x) The petitioner prays for setting aside of the impugned order dated 15.12.2023 and for issuance of directions to the Commercial Court to forward the arbitral order to the Nazir Section for immediate execution strictly in terms of Section 17(2) of the Arbitration and Conciliation Act read with Section 136 of the Code of Civil Procedure. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
4. The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions:
(i) The opposite parties contend that the writ petition is not maintainable as the petitioner has an adequate remedy before the Commercial Court in Page 5 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Jan-2026 16:26:20 the pending execution, and the High Court should not interfere in an ongoing execution proceeding.
(ii) The opposite parties plead waiver under Section 4 of the Arbitration and Conciliation Act, 1996 on the ground that the petitioner complied with the District Judge's direction, filed execution before the Commercial Court, sought and filed requisites for notice, and raised no objection until after the opposite parties filed Section 47 objections.
(iii) The opposite parties contend that having invited the procedure adopted by the Commercial Court and acted upon it, the petitioner cannot seek to "turn the clock back" by challenging issuance of notice, as that would amount to improper interference with the Commercial Court's process.
(iv) The opposite parties assert that Section 17(2) makes the arbitral order enforceable "in the same manner as if it were an order of the Court,"
which necessarily imports CPC procedure, including issuance of notice and adjudication of objections, and therefore the Commercial Court acted correctly in issuing notice.
(v) The opposite parties justify their Section 47 CPC application as a statutory remedy enabling the executing court to determine questions arising in execution, and argue that since they raised substantial questions of law about executability, the Commercial Court must decide those issues before proceeding.
(vi) The opposite parties argue that issuance of notice is mandated by the principle of audi alteram partem, and that enforcement without notice would enable harassment of borrowers through ex parte and illegal arbitral processes.
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(vii) The opposite parties contend that the Section 17 order is a nullity because no notice invoking arbitration and no notice prior to the Section 17 order was served, and a void order cannot be executed through court machinery.
(viii) The opposite parties contend that the attachment order is perverse and beyond the loan contract, because the secured remedy was repossession of hypothecated machinery and the immovable property sought to be attached was not mortgaged or hypothecated and belongs to a third party.
(ix) The opposite parties contend that there is doubt about the very existence and validity of an arbitration agreement due to alleged non-supply of loan documents and lack of free consent, and seek production of the loan agreement to test the petitioner's case.
(x) The opposite parties contend that the arbitration mandate has expired and no final order or award has been passed, and therefore the Section 17(1) order has lost efficacy and cannot be enforced.
(xi) The opposite parties allege fraud and mala fides in the arbitral process from appointment to the attachment order, contend that fraud vitiates all proceedings, and urge dismissal of the writ petition in limine with exemplary costs.
IV. COURT'S REASONING AND ANALYSIS:
5. Heard Learned Counsel for parties and perused the documents placed before this Court.
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6. The petitioner invokes this Court's writ jurisdiction under Article 226/227 of the Constitution, assailing the order dated 15.12.2023 of the learned Senior Civil Judge (Commercial Court), Bhubaneswar. By the impugned order, the Commercial Court, acting as the executing court for an interim attachment ordered by an arbitral tribunal, directed issuance of notice to the judgment-debtors (opposite parties herein) before enforcing the arbitral tribunal's interim order of attachment.
7. The core grievance of the petitioner (award-holder) is that the executing court ought to have enforced the arbitral tribunal's order forthwith and mechanically, without entering upon any objections or issuing notice, in view of Section 17(2) of the Arbitration and Conciliation Act, 1996 (hereinafter "Arbitration Act"). The petitioner contends that the executing court's act of entertaining objections under Section 47 of the Code of Civil Procedure, 1908 (CPC) at the instance of the opposite parties is without jurisdiction and frustrates the efficacy of the arbitral tribunal's interim protection. On the other hand, the opposite parties resist the writ petition on grounds of maintainability, pointing out the pendency of execution proceedings and availability of statutory remedies. They contend that the arbitral order is not immune from challenge at the enforcement stage, especially when fundamental jurisdictional issues (like absence of notice, arbitrability, or fraud) are raised.
8. With these rival contentions, the following points arise for determination:
i. the maintainability of the present writ petition in view of the alternative remedies and ongoing proceedings, and Page 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Jan-2026 16:26:20 ii. the scope of the executing court's jurisdiction in enforcing an arbitral tribunal's interim order under Section 17(1) of the Arbitration Act, particularly whether issuance of notice and consideration of objections under Section 47 CPC was permissible or not.
This Court shall proceed to discuss these issues in seriatim.
i. MAINTAINABILITY:
9. At the outset, this Court must be satisfied that the extraordinary writ jurisdiction is appropriately invoked. It is well settled that the Arbitration Act is structured on the principle of minimal judicial interference. In fact, a string of judicial precedents have cautioned that recourses to Articles 226 and 227 should not become a substitute for the statutory framework, and that parties must ordinarily await the stage and remedies expressly provided by the Act.
10. In fact, the Supreme Court in the case of SBP and Co. v. Patel Engg.
Ltd.1the Supreme Court emphasised that judicial intervention in matters involving the Arbitration Act must be limited and strictly adhere to specific statutory provisions. The relevant excerpts are produced below:
"45. It is seen that some High Courts have proceeded on the basis that any order passed by an Arbitral Tribunal during arbitration, would be capable of being challenged under Article 226 or Article 227 of the Constitution. We see no warrant for such an approach. Section 37 makes certain orders of the Arbitral Tribunal appealable. Under Section 34, the aggrieved party has an avenue for ventilating its grievances against the award including any in-between 1 (2005) 8 SCC 618 Page 9 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Jan-2026 16:26:20 orders that might have been passed by the Arbitral Tribunal acting under Section 16 of the Act. The party aggrieved by any order of the Arbitral Tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The Arbitral Tribunal is, after all, a creature of a contract between the parties, the arbitration agreement, even though, if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the Arbitral Tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the Arbitral Tribunal is capable of being corrected by the High Court under Article 226 or Article 227 of the Constitution.
Such an intervention by the High Courts is not permissible.
46. The object of minimising judicial intervention while the matter is in the process of being arbitrated upon, will certainly be defeated if the High Court could be approached under Article 227 or under Article 226 of the Constitution against every order made by the Arbitral Tribunal. Therefore, it is necessary to indicate that once the arbitration has commenced in the Arbitral Tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them under Section 37 of the Act even at an earlier stage."
11. In the present case, the petitioner is essentially aggrieved by an interlocutory procedural order of the executing court directing notice to the judgment-debtors. The execution proceeding is still pending before the Commercial Court, where the petitioner can raise objections regarding delay or any unwarranted inquiry. No final order adverse to the petitioner has yet been passed; the court has only initiated a hearing process. Ordinarily, therefore, entertaining a writ at this stage would Page 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Jan-2026 16:26:20 amount to midstream interference in execution, and the petitioner is expected to pursue remedies before the executing court and, if necessary, challenge any final decision in accordance with law.
12. It is also relevant that Section 37(2)(b) of the Arbitration and Conciliation Act provides an appeal against an arbitral tribunal's order granting or refusing interim measures. If the opposite parties were aggrieved by the Section 17 attachment direction, the statutory course was a Section 37 appeal, which they chose not to pursue. The petitioner, being the beneficiary of the Section 17 order, cannot invoke Section 37 and is instead seeking expeditious enforcement.
13. Even so, High Court interference is warranted only where the executing court acts without jurisdiction or in patent disregard of law, leaving no efficacious remedy. The petitioner alleges precisely such illegality, namely that the executing court is entertaining objections beyond the permissible scope under Section 17(2). Since this raises a pure jurisdictional question concerning enforceability of arbitral interim orders and the propriety of the executing court's procedure, and since delay may defeat the statutory purpose, the issue merits examination within the limited confines of writ scrutiny.
14. The legal backdrop of this dispute lies in Section 17(1) and 17(2) of the Arbitration and Conciliation Act, 1996 (as amended by Act 3 of 2016). Section 17(1) empowers an arbitral tribunal to grant interim measures (analogous to the interim reliefs a court may grant under Section 9), and Section 17(2) provides that an interim measure ordered by the tribunal shall be deemed to be an order of the Court for all purposes and shall be Page 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Jan-2026 16:26:20 enforceable under the CPC in the same manner as if it were an order of the Court. This amendment was introduced on the recommendation of the Law Commission to ensure that arbitral interim orders are not toothless or futile.
15. The Supreme Court in Alka Chandewar v. Shamshul Ishrar Khan2explained the objective behind inserting Section 17(2): prior to 2015, an arbitral tribunal lacked any effective means to enforce its interim orders, compelling parties to approach courts for contempt or for parallel Section 9 relief, thereby undermining Section 17. The relevant excerpts are produced below:
"49. The Commission believes that while it is important to provide teeth to the interim orders of the arbitral tribunal as well as to provide for their enforcement, the judgment of the Delhi High Court in Sri Krishan v. Anand is not a complete solution. The Commission has, therefore, recommended amendments to section 17 of the Act which would give teeth to the orders of the Arbitral Tribunal and the same would be statutorily enforceable in the same manner as the Orders of a Court. In this respect, the views of the Commission are consistent with (though do not go as far as) the 2006 amendments to Article 17 of the UNCITRAL Model Law. Pursuant to this report, sub-section(2) to Section 17 was added by the Amendment Act 2015, so that the cumbersome procedure of an Arbitral Tribunal having to apply every time to the High Court for contempt of its orders would no longer be necessary. Such orders would now be deemed to be orders of the Court for all purposes and would be enforced under the Civil Procedure Code, 1908 in the same manner as if they were orders of the Court. Thus we do not find Shri Rana Mukherjee's submission to be of any substance in 2 (2017) 16 SCC 119 Page 12 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Jan-2026 16:26:20 view of the fact that Section 17(2) was enacted for the purpose of providing a "complete solution" to the problem."
16. Thus, an interim award or order of an arbitrator is no longer a mere paper decree; it is as binding and efficacious as an interim order of a civil court. The legal fiction created by Section 17(2) is that, for enforcement purposes, the arbitral tribunal's order is to be treated as if it were an order of the court. The consequences are two-fold: (a) the successful party can directly approach the executing court to enforce the order, without needing a separate sanction from the court, and (b) the party against whom the order is passed must comply, failing which the coercive processes of execution are available, and disobedience may even expose that party to contempt consequences.
17. Importantly, the Supreme Court has clarified that the deeming in Section 17(2) is limited to enforcement. In Amazon.com NV Investment Holdings LLC v. Future Retail Ltd.3the Court noted that while Section 17(2) creates a legal fiction to facilitate enforceability of the arbitral tribunal's interim orders, that fiction cannot be extended beyond its purpose. Specifically, the Court held that an order enforcing an arbitral interim measure is not itself appealable under the normal civil procedure (e.g. not appealable under Order 43 CPC), because Section 37 of the Arbitration Act delineates the exclusive appeals and does not include orders passed under Section 17(2). The relevant excerpts are produced below:
"72. There is no doubt that Section 17(2) creates a legal fiction. This fiction is created only for the purpose of 3 (2022) 1 SCC 209 Page 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Jan-2026 16:26:20 enforceability of interim orders made by the Arbitral Tribunal. To extend it to appeals being filed under the Code of Civil Procedure would be a big leap not envisaged by the legislature at all in enacting the said legal fiction."
18. In essence, once an interim order is passed by the arbitrator under Section 17(1), the aggrieved party's remedy is to file an appeal under Section 37(2)(b) of the Act (within the statutorily prescribed period). If no such appeal is filed, or if the appeal is filed and rejected, the interim order attains finality inter partes and must be enforced like any order of court. The enforcing court does not sit in appeal or review over the merits of the interim measure, it is there to translate the order into reality, using the toolkit of execution provided by the CPC.
19. This jurisprudence highlights the legislative intent that court interference in arbitral interim measures be minimal and only through the specified channel of appeal. An executing court's role, therefore, is meant to be ministerial or mechanistic in nature, akin to the role it plays while executing a decree of a competent court. The petitioner is correct in emphasizing that the scheme of the Act is to ensure arbitral orders are implemented promptly, without spawning a protracted second litigation on the same issues under the guise of enforcement.
20. That said, once Section 17(2) treats an arbitral interim order as enforceable in the same manner as an order of court, it also attracts the ordinary incidents of execution. Section 36 CPC makes the execution provisions applicable, mutatis mutandis, to orders; consequently, the Page 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Jan-2026 16:26:20 machinery of Order XXI CPC can be pressed into service for enforcing a Section 17 interim measure.
21. This frames the real issue: while applying the CPC, can the executing court also adopt its usual procedural safeguards, such as issuing notice to the judgment-debtor, and can it entertain objections at the execution stage? The petitioner contends that a Section 17 interim measure, especially one grounded in urgency like attachment to prevent dissipation of assets, must be enforced forthwith. Any pre-enforcement notice, it is urged, defeats the very purpose of interim protection by giving the debtor time to frustrate the order.
22. To reinforce this, the petitioner draws an analogy with Section 14 of the SARFAESI Act, where, after the statutory notice under Section 13(2), the District Magistrate may assist in taking possession without further notice to the borrower. By parity of reasoning, once the arbitral tribunal has directed attachment on prima facie necessity, the executing court's role should be prompt and largely ministerial, not a forum for a fresh round of contest that risks rendering the interim relief otiose. ii. SCOPE OF THE EXECUTING COURT AND OBJECTIONS UNDER SECTION 47 CPC:
23. It is a fundamental principle of execution jurisprudence that an executing court cannot travel beyond the decree. It must take the decree/order as it stands and enforce it; it cannot render it nugatory or question its legality or correctness. The sole exceptions recognized are cases where the decree is a nullity, either because the court (or tribunal) that passed it lacked Page 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Jan-2026 16:26:20 jurisdiction or because the decree was obtained by practicing a fraud going to the very authority of the court.
24. A plethora of judicial precedents have consistently held that objections under Section 47 CPC cannot be used to re-open or relitigate the merits of the case; they are confined to issues pertaining to the executability of the decree (for instance, questions of jurisdiction, identity of parties, satisfaction or discharge of the decree, etc.), not the substantive rights and wrongs which led to the decree.
25. In the context of arbitral awards, the Supreme Court in the case of MMTC Ltd. v. Anglo-American Mettalurgical Coal Pty. Ltd.4 has reiterated that post-award objections at the enforcement stage are limited to jurisdictional defects that render the award void, and a party cannot thwart execution by raising pleas of fraud or error that were or could have been raised at the stage of challenging the award under Section 34. The relevant excerpts are produced below:
"We are dealing with an objection filed under Section 47 claiming that the award as upheld by this Court is inexecutable. As held by this Court in Electrosteel (Supra) the jurisdiction lies in a narrow compass. It is the mandate of this Court that the object of Section 47 is to prevent unwarranted litigation and dispose of all objections as expeditiously as possible. This Court has warned that there is a steady rise of proceedings akin to a retrial which causes failure of realization of the fruits of a decree, unless prima facie grounds are made out entertaining objections under Section 47 would be an abuse of process."4
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26. In essence, once an award has attained finality (or an interim order has not been appealed under Section 37), the executing court cannot allow the judgment-debtor to use Section 47 as a second bite at the cherry.
27. In the present case, the same principles apply to enforcement of an arbitral tribunal's interim order. The arbitral order dated 03.09.2021 directed attachment of the specified immovable property, to the extent of the loan liability, upon failure of the opposite parties to furnish alternative security within the stipulated time. By virtue of Section 17(2) of the Arbitration and Conciliation Act, 1996, the order is enforceable as if it were an order of a court. The executing court, therefore, must enforce it as it stands and cannot go behind it or examine whether the tribunal was justified in granting attachment or whether some other remedy ought to have been pursued. Such grievances lie before the appellate forum under Section 37 or at the stage of challenge under Section 34, as the case may be.
28. At the same time, Section 17(2) does not exclude the application of the CPC procedure that ordinarily governs execution. The Commercial Court does not commit any illegality merely by issuing notice or considering objections, provided it confines itself to matters that bear upon execution and not the merits of the interim measure. In the present case, the execution was sought more than two years after the order, and the order was transmitted for execution in another jurisdiction. In such circumstances, issuance of notice under Order XXI Rule 22 CPC is consistent with the normal execution framework. The transmission through Section 136 CPC further reinforces that the executing court is to Page 17 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Jan-2026 16:26:20 proceed as if the order were its own, which carries with it the usual procedural safeguards.
29. The controlling principle is one of strict confinement. The executing court may entertain only those objections that relate to executability, such as identity of parties, identity and description of the property, procedural compliance in attachment, or a patent jurisdictional defect rendering the order void. It cannot permit objections that, in substance, challenge the correctness of the arbitral order or reopen the underlying dispute.
30. Though no separate point for determination has been framed on waiver, the opposite parties have contended that, since the petitioner participated in the execution and initially took steps for issuance of notice, it has waived any objection to that procedure with reference to Section 4 of the Arbitration and Conciliation Act, 1996. This Court is not persuaded that Section 4, which concerns waiver of irregularities in arbitral proceedings, directly governs conduct in court execution. Even so, the broader principle of estoppel by conduct is relevant.
31. The record shows that upon the District Judge, Khurda forwarding the attachment order for execution, the petitioner instituted execution before the Commercial Court and, in terms of the court's directions, paid process fee and caused notice to be served. Only after the judgment debtors entered appearance and filed objections did the petitioner file the present writ petition asserting that notice ought not to have been issued at all. A jurisdictional objection cannot be waived; however, as already held, the executing court had the authority to issue notice under the CPC. The petitioner's own conduct indicates that it contemplated the ordinary Page 18 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Jan-2026 16:26:20 execution process. Having acquiesced in that procedure, it cannot now characterize it as void. At the highest, it can seek expeditious execution and exclusion of frivolous objections.
32. This Court, therefore, finds no mala fides in the course adopted by the Commercial Court. It appears to have followed the usual process, consistent with the requirement of fairness where rights in immovable property are implicated. If the petitioner apprehended that notice would enable frustration of attachment, the appropriate course was to seek urgent protective orders from the executing court on the facts. No such case of exceptional urgency was presented. The real grievance is delay through abuse of objections, which the executing court can address by confining the inquiry to executability and proceeding with due expedition.
V. CONCLUSION:
33. In view of the discussion aforesaid, this Court finds that the impugned order dated 15.12.2023 is only a procedural direction for issuance of notice in an execution instituted for enforcement of an arbitral tribunal's interim attachment under Section 17(2). Such issuance of notice, particularly when enforcement is sought after a substantial lapse of time and the order has travelled for execution to another jurisdiction, is not per se without jurisdiction, so long as the executing court remains strictly confined to execution and does not undertake any review of the merits of the arbitral order.
34. This Court further holds that objections, if entertained, can be considered only within the narrow compass of executability. The Commercial Court Page 19 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 17-Jan-2026 16:26:20 shall not permit the opposite parties to convert Section 47 CPC into a collateral challenge to the arbitral tribunal's interim measure, nor allow a re-agitation of issues that properly lie in appeal under Section 37 or in challenge proceedings under the Arbitration Act. The petitioner's apprehension of frustration of attachment is not a ground to set aside the notice order at this stage. The appropriate course is to seek urgent execution protective directions from the executing court, which is competent to regulate its process and, on a proper case being made out, to proceed in accordance with law to ensure the interim protection is not rendered illusory.
35. Accordingly, the Writ Petition stands dismissed. The Commercial Court shall endeavour to dispose of the pending objections expeditiously and proceed with the execution in accordance with law, keeping in view the limits indicated herein.
36. Interim order, if any, passed earlier stands vacated.
(Dr. Sanjeeb K Panigrahi) Judge Orissa High Court, Cuttack, Dated the 9th Jan, 2026/-
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