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It is submitted that in its judgment in the case of Furest Day Lawson Ltd., the Supreme Court has held that the execution application was maintainable treating the foreign award as a decree and that enforcement was one stage in the execution proceedings. It is submitted that no separate application for enforcement is required under Section 49 of the Act and that the question of enforcement can be decided in the execution proceedings itself. Thus enforcement is a step in aid or a step ancillary to execution. It is submitted that even assuming that a separate application was required to be made for enforcement under Section 49, such an application would be governed by the provisions of Article 136 of the Limitation Act. In support of this submission, the Petitioner relies on the judgments of this Court in the case of Coovarji varjang and Anr. v. Cooverbai widow of Nagsehy Champsey AIR 1932 Bom 516 and Ramnath Goenka v. Amarchand Mangaldas . It is submitted that similar provisions under Order 21 Rule 50 of the CPC were considered in these judgments and the application for leave was treated as an execution application to which Article 136 of the Limitation Act applies. It is submitted that the contention that an application for execution of a foreign award would fall outside the perview of Article 136, because the award is not enforceable is not correct, because the third column of the Article 136 only prescribes the time from which the period starts for filing an application. According to the Petitioner, Columns 2 and 3 of the Schedule to Limitation Act are only relevant for the purpose of calculating the period of limitation in connection with the provisions of the Limitation Act and not to determine the nature of the suit or application set out in the column No. 1 thereto. As the period of limiation was provided by Article 136, the residuary Article 137 would not apply. It is further submitted that in any case the question whether the decree has become enforceable for the purpose of the Limitation Act must depend under the terms of decree itself i.e. the decree itself must be either conditional or make its enforcement contingent upon some or other event. That does not apply to enforcement of a foreign award which is stamped as a decree. It is further submitted that any other interpretation of the provisions of Article 136 would not be consistent with the Article 3 of New York Convention, which provides that a contracting State will not impose a substantially more onerous condition for enforcement of a foreign award, than that is imposed on the recognition or enforcement of domestic arbitral Awards. If the period of limitation for enforcement of foreign award is restricted to 3 years the same would make it more onerous than the period of 12 years provided for enforcing a domestic award.

30. Alternatively it was contended that a party holding a foreign award has to file a separate application and produce evidence as contemplated under Section 47 and also satisfy the conditions laid down under Section 48 and it is only after the court decides about the enforceability of the award, it should be deemed to be a decree under Section 49 as available for execution. In other words, the party must separately apply before filing an application for execution of a foreign award.
31. If the argument of the respondent is accepted, one of the objects of the Act will be frustrated and defeated. Under the old Act, after making award and prior to execution, there was a procedure for filing and making an award a rule of court i.e. a decree. Since the object of the Act is to provide speedy and alternative solution to the dispute, the same procedure cannot be insisted upon under the new Act when it is advisedly eliminated.

The submission that the execution petition could not be permitted to convert as an application under Section 47 is technical and is of no consequence in the view we have taken.

In the case before the Supreme Court an application for execution of the foreign award was made and that application for execution was held not to be maintainable by the High Court because according to the High Court first the person in whose favour the Award is made had to apply for recognition of the Award and then only an application for execution of the Award could be made. From the observations of the Supreme Court quoted above, it is clear that it is not necessary for the person who has foreign Award in his favour to apply for recognition of the Award by the Court separately , he could make application for execution of the Award and in that application a request for inquiry by the Court as required by the Statute to find out whether the Award is enforceable is implicit and the Court in that application can make an inquiry as to the enforceability of the Award and the Court after recording its satisfaction that the Award is enforceable can proceed to execute that Award as if the award is a decree made by that court. Neither in the judgment in the case of Thyseen Stahlunion GMBH" nor in the judgment in the case Furest Day Lawson Ltd. the Supreme Court has considered the question by referring to the provisions of the Limitation Act nor did it consider the question as to by which article in the Schedule of the Limitation Act limitation for making an application for execution of the foreign award would be governed. All that the Supreme Court has stated is that a separate application for recognition of the Award is not necessary because now the Court is not required to pronounce judgment in terms of the Award in order that that judgment operates as a decree.

Now an application for execution can be made and in that application there would be an implied prayer for holding an inquiry into the enforceability of the Award and the Court will proceed to execute it as a decree in case it is satisfied that the Award is enforceable. The Supreme Court has in clear terms said in the judgment in the case Furest Day Lawson Ltd. that there will be two stages in enforcement of foreign award, first stage would be of the Court making an inquiry into enforceability of the Award and the second stage would commence in case the Court holds that the Award is enforceable. It therefore, follows that in case the Court holds either on the other side satisfying it under Sub-section (1) of Section 48 of the Act that the Award is not capable of being enforced or the Court under Sub-section (2) of Section 48 of the Act on its own finding that the Award is not capable of being enforced then there would be no question of execution. In my opinion, the observations of the Supreme Court in its judgment in the case "Thyssen Stahlunion GMBH" which is quoted by the Supreme Court in its judgment in Furest Day Lawson Ltd. that under the Act the Foreign Award is stamped as a decree is made only to indicate that now under the Act, as was necessary under the repealed Foreign Awards Act, the Court is not required to pronounce judgment in terms of the Award so that judgment operates as a decree. Now under the Act on the Court being satisfied that the Award is enforceable the Award itself operates as a decree. But it is clear from the provisions of Section 49 of the Act which are quoted above, the Award operates as a decree only on the Court recording its satisfaction that it is enforceable and it is only at that point of time that the Award becomes a decree of that Court which has recorded its satisfaction that it is enforceable. As observed above Article 136 of the Schedule of the Limitation Act becomes applicable for execution of any decree or order of any Civil Court. Till the Court records satisfaction contemplated by Section 49 of the Arbitration Act the foreign Award is not deemed to be a decree of that court. Therefore, when an application is filed before the Court, before the Court has recorded its satisfaction that the foreign Award is enforceable, it will not to be an application for execution of any decree or order of any Civil Court. It will be an application for execution of an Award which is capable of being converted into a decree and obviously therefore, Article 136 of the Schedule of the Limitation Act would not apply to such an application. There is no period of limitation provided by any of the Article in the Schedule of the Limitation Act specifically for making an application for execution of a foreign Award which is capable of being converted into a decree of the Civil Court, and therefore, such an application would be governed by the residuary Article 137 and therefore, an application for execution of a foreign Award which has not become a decree, has to be made within a period of three years from the date on which the right to make such an application accrues. In my opinion, placing such interpretation would also be in favour of the persons who are holding foreign awards in their favour, because they can apply for recognition of the foreign award within a period of three years of the right to apply accruing to them and after the Court records satisfaction contemplated by Section 49 of the Act, the Award becomes a decree and they get further period of 12 years under Article 136 to apply to the Court for execution of that Award. In any case, the judgment of the Supreme Court in the case of "Thyssen Stahlunion GMBH" or in the case of Furest Day Lawson Ltd. cannot be taken to mean that it is compulsory for a person who is holding a foreign award in his favour to make an application for execution. All that the Supreme Court says is that such a person can make an application for execution even before the Court has recorded its satisfaction as contemplated by Section 49 of the Act. It is always open to a person who is holding a foreign Award in his favour to make an application only for recognition of the foreign Award and thereafter to make a separate application for execution of the Award which has become a decree after the Court records its satisfaction. I find that similar view has been taken by the learned Single Judge of this Court in the judgment Tropic Shipping Co. Ltd. v. Kothari Global Limited . The learned Single Judge has observed thus: