Finality and Enforcement of the Award

In one line

Section 35 makes the award final and binding on the parties and persons claiming under them, and section 36 makes it enforceable as if it were a decree of the court, with a stay available only on a separate application decided for reasons recorded in writing.

Section 35: finality

SUBJECT TO THIS PART, AN ARBITRAL AWARD SHALL BE FINAL AND BINDING ON THE PARTIES AND PERSONS CLAIMING UNDER THEM RESPECTIVELY.

Three things sit in that one sentence.

"SUBJECT TO THIS PART" preserves section 34, so finality is finality against a rehearing on the merits, not against the narrow grounds of setting aside.

"FINAL AND BINDING" means the award has the effect of RES JUDICATA between the parties, so the same dispute cannot be arbitrated or sued upon again.

"AND PERSONS CLAIMING UNDER THEM" extends the binding effect beyond the signatories to successors, assignees and legal representatives, which is consistent with section 40, under which the arbitration agreement is not discharged by the death of a party and is enforceable by or against the legal representative of the deceased.

Section 36(1): enforcement

WHERE THE TIME FOR MAKING AN APPLICATION TO SET ASIDE THE AWARD UNDER SECTION 34 HAS EXPIRED, then, subject to sub-section (2), SUCH AWARD SHALL BE ENFORCED IN ACCORDANCE WITH THE PROVISIONS OF THE CODE OF CIVIL PROCEDURE, 1908, IN THE SAME MANNER AS IF IT WERE A DECREE OF THE COURT.

Note precisely what the section does and does not say. The award is enforced AS IF IT WERE a decree; it is NOT converted into one. No filing of the award, no judgment upon it, no decree in its terms, which is the whole distance travelled from the 1940 Act.

The consequence is that the whole of Order XXI of the Code is available: attachment and sale, arrest, the appointment of a receiver, garnishee proceedings and the rest.

Section 36(2) and (3): stay

36(2): where an application to set aside has been filed under section 34, THE FILING OF SUCH AN APPLICATION SHALL NOT BY ITSELF RENDER THAT AWARD UNENFORCEABLE, UNLESS THE COURT GRANTS AN ORDER OF STAY of the operation of the award in accordance with sub-section (3), ON A SEPARATE APPLICATION MADE FOR THAT PURPOSE.

36(3): upon the filing of such an application, the Court MAY, SUBJECT TO SUCH CONDITIONS AS IT MAY DEEM FIT, GRANT STAY of the operation of the award FOR REASONS TO BE RECORDED IN WRITING.

First proviso: while considering a stay of an award FOR THE PAYMENT OF MONEY, the Court shall HAVE DUE REGARD TO THE PROVISIONS FOR GRANT OF STAY OF A MONEY DECREE under the Code of Civil Procedure, 1908, which in practice means security or deposit.