Introduction
Indian arbitration jurisprudence took a decisive turn with the Supreme Court’s ruling in Home Care Retail Marts (P) Ltd. v. Haresh N. Sanghavi, 2026 SCC OnLine SC 670. The judgment settled a sharp division among High Courts on whether a party that has lost an arbitration can still approach a court under Section 9 of the Arbitration and Conciliation Act, 1996 after the award is passed. The Bombay, Delhi, Madras, and Karnataka High Courts had denied this right to the unsuccessful party. The Telangana, Gujarat, and Punjab and Haryana High Courts had permitted it. The Supreme Court decided in favour of the losing party, but that is only part of the story.
A second, largely unexamined remedy exists for the unsuccessful party outside the Arbitration Act altogether. It rests on Section 47 of the Civil Procedure Code, 1908, read with Section 36 of the Arbitration and Conciliation Act, 1996. This remedy becomes available once an arbitral award attains the status of an executable decree, and it operates through a completely different procedural track than Section 9.
The Home Care Retail Marts Ruling: What the Supreme Court Decided
The central question before the Supreme Court was whether the word “party” in Section 9 of the Arbitration and Conciliation Act could be read down, at the post-award stage, to mean only the party that succeeded in the arbitration. The argument for this restrictive reading drew heavily on the Bombay High Court’s earlier decision in Dirk India (P) Ltd. v. Maharashtra State Electricity Generation Co. Ltd., 2013 SCC OnLine Bom 481, which held that a post-award Section 9 petition exists to protect the “fruits of arbitral proceedings.” Since a losing party has no fruits to protect, the Bombay High Court reasoned, it has no standing to seek interim relief.
The Supreme Court rejected this position on three grounds. First, Section 2(h) of the Arbitration and Conciliation Act defines “party” simply as a party to the arbitration agreement, without distinguishing between a winning and a losing party. Reading such a distinction into the statute would amount to judicial amendment of the provision. Second, Parliament deliberately departed from Article 9 of the UNCITRAL Model Law, which does not provide for post-award interim measures at all, and consciously extended Section 9 to cover the post-award stage without restricting who could invoke it.
Third, the Court relied on the Constitution Bench ruling in Gayatri Balasamy v. ISG Novasoft Technologies Ltd., (2025) 7 SCC 1, which confirmed that courts hearing a Section 34 challenge now have the power to modify an arbitral award in certain circumstances. Once modification of an award is a live possibility, the entire premise of the Dirk India reasoning, that a losing party has nothing left to protect, no longer holds.
Section 9 Operates in a Distinct Sphere From Sections 34 and 36
The Supreme Court reaffirmed that Section 9 occupies a different space from Sections 34 and 36 of the Arbitration and Conciliation Act. Sections 34 and 36 deal with challenging or enforcing an award. Section 9 exists to protect the subject-matter or the amount in dispute pending that process.
Denying Section 9 relief to an unsuccessful party would leave it without any protective remedy during the pendency of its Section 34 challenge. At the same time, the Court made clear that the bar for an unsuccessful party seeking interim relief under Section 9 is set higher than for a successful one. Access to the remedy does not translate into automatic grant of relief. This reasoning was subsequently applied by the Bombay High Court in ONGC Ltd. v. Larsen & Toubro Ltd., 2026 SCC OnLine Bom 2861.
The Combined Operation of Section 36, Arbitration Act and Section 47 CPC
What the Home Care Retail Marts judgment did not address is a separate remedy available to the losing party once an award becomes executable. This remedy flows from Section 36 of the Arbitration and Conciliation Act, 1996 read with Section 47 of the Civil Procedure Code, 1908.
Under Section 36, an arbitral award becomes enforceable as if it were a decree of a civil court in two situations: once the limitation period for filing a Section 34 application has expired without any such application being filed, or upon disposal of a Section 34 application where no stay has been granted. Only from that point does the award carry the status of an executable decree, and only from that point does the entire execution machinery under the Civil Procedure Code, including Section 47, become available to either party. Section 47 CPC does not apply from the date the award is passed. It applies only once the award has crossed the threshold of enforceability fixed by Section 36.
Section 47 CPC gives the court executing a decree the plenary authority to decide every question arising between the parties relating to the execution, discharge, or satisfaction of that decree. This authority is not limited to the decree-holder. A judgment-debtor, meaning the losing party, can invoke it as well.
M.P. Shreevastava v. Veena: Establishing the Judgment-Debtor’s Right
The Supreme Court settled the judgment-debtor’s right to invoke Section 47 CPC independently in M.P. Shreevastava v. Veena, 1966 SCC OnLine SC 27. In that case, a husband had secured a decree for restitution of conjugal rights. The wife offered to comply, was refused, and then applied to have the decree recorded as satisfied even though the husband had never filed an execution petition.
The husband argued that in the absence of an execution petition, there was no “executing court” before which her application could be entertained. The Supreme Court rejected this argument, holding that Section 47 CPC requires all questions relating to the execution, discharge, or satisfaction of a decree to be resolved within execution proceedings rather than through a fresh suit, and that this power is available to either party. The pendency of an execution application filed by the decree-holder is not a precondition for the judgment-debtor to move the executing court.
Applied to arbitration, this means a party against whom an award has been passed does not need to wait for the award-holder to initiate execution proceedings. Once the award becomes executable under Section 36 of the Arbitration and Conciliation Act, the losing party can approach the executing court directly under Section 47 CPC.
Scope of Section 47 CPC Objections in the Arbitration Context
Consider a situation where a foreign award grants only declaratory relief, leaving the award-holder with no immediate need to approach an execution court. Here, the losing party need not wait indefinitely. It may itself file an application under Section 47 CPC and seek appropriate interim orders once the award becomes executable or once a Section 34 application has been filed.
The scope of what can actually be raised under Section 47 in an arbitration matter is, however, tightly bounded. In Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1, a three-Judge Bench held that the Arbitral Tribunal is the primary authority on questions of non-arbitrability, with the court getting only a “second look” at the Section 34 stage. The enforcement stage under Section 36 was never intended to function as an additional opportunity to raise substantive challenges.
This position was reinforced by the Supreme Court in Electrosteel Steel Ltd. v. Ispat Carrier (P) Ltd., (2025) 7 SCC 773, which held that a Section 47 objection against an arbitral award can succeed only on narrow grounds, such as the award being a nullity or void for want of jurisdiction. Errors of law or fact within the award itself cannot form the basis of a Section 47 objection, and the executing court has no power to reassess the correctness of the award on merits.
Executing Court Powers Compared With a Section 9 Court
Despite these narrow grounds, the powers available to an executing court under Section 47 CPC and Order 21 CPC are structurally broader than those available to a court exercising jurisdiction under Section 9 of the Arbitration Act. Section 9 permits a court to grant interim measures that it considers just and convenient, operating as a discretionary and protective remedy before or during the arbitral process.
Section 47, by contrast, is a question-determining provision that allows the executing court to resolve all disputes connected with execution, discharge, or satisfaction of the decree. Under Order 21 CPC, an executing court can direct disclosure of assets, order attachment of property, appoint a Receiver, and take various coercive steps, provided a prima facie case is established.
That said, the threshold for invoking either remedy remains comparable. Under Section 9, the applicant must show a prima facie case, balance of convenience, and likelihood of irreparable harm. The same prima facie standard governs Section 47 proceedings. In Satyawati v. Rajinder Singh, (2013) 9 SCC 491, the Supreme Court held that execution is a right of the decree-holder and cannot be stayed casually, and that a court must be satisfied of prima facie merit before entertaining an objection under Section 47 or granting any stay of execution.
This was reiterated in MMTC Ltd. v. Anglo-American Metallurgical Coal (P) Ltd., (2026) 3 SCC 99, where the Supreme Court held that entertaining a Section 47 objection without a prima facie showing of nullity or jurisdictional infirmity amounts to an abuse of process. The powers under Section 47 are wider in kind, but the losing party still faces a real evidentiary bar before those powers are exercised in its favour.
Appealability Under Section 37 Does Not Extend to Section 47 Orders
Orders passed under Section 9 of the Arbitration Act are appealable under Section 37 of the same Act. One of the concerns raised in Home Care Retail Marts was that opening Section 9 to unsuccessful parties would multiply proceedings and undermine the finality that the Arbitration Act is designed to protect. This concern does not carry over to Section 47 CPC in the same manner, because orders passed by an executing court under Section 47 are not subject to the appellate mechanism under Section 37 of the Arbitration Act. The Section 47 route functions within its own procedural framework under the Civil Procedure Code, separate from the appeal cycle that governs arbitration-specific orders.
Jurisdictional Overlap and the Risk of Forum Shopping
The coexistence of Section 9 and Section 47 as parallel remedies raises a genuine concern about multiplication of jurisdictions. An execution petition under Section 36 of the Arbitration Act, read with Order 21 CPC, can be filed in any court within whose territorial jurisdiction the judgment-debtor holds assets. If a Section 9 petition can also be filed before any such court, this creates the possibility of conflicting orders from different courts on the same subject-matter, and the risk of deliberate forum selection by the losing party. Section 42 of the Arbitration Act, which consolidates jurisdiction in the court where the first application under Part I was made, provides only a partial safeguard and may not always cover post-award Section 9 applications structured to avoid its operation.
The logical implication is that the window during which an unsuccessful party can invoke Section 9 at the post-award stage should be treated as narrow, running from the date of the award until the expiry of the limitation period for filing a Section 34 application. That period is also the earliest point at which execution can lawfully commence. Once the award becomes executable and the execution forum opens up, Section 47 CPC before the executing court becomes the appropriate route for the losing party, rather than a fresh or parallel Section 9 petition.
Legislative History: The Position Under the 1940 Act
Under the earlier Arbitration Act, 1940, Section 18 expressly limited interim measures to the successful party. Parliament did not carry this restriction forward into the 1996 Act. This deliberate legislative omission, taken together with the broad but carefully bounded power under Section 47 CPC and the precedent set in M.P. Shreevastava, confirms that a losing party in arbitration has genuine remedies available to it, remedies that operate within defined limits so as to preserve the Arbitration Act’s core commitment to finality and minimal judicial interference.
Conclusion
The Supreme Court’s decision in Home Care Retail Marts (P) Ltd. v. Haresh N. Sanghavi correctly resolves the conflict over whether a losing party can invoke Section 9 of the Arbitration and Conciliation Act after an award is passed. The word “party” in Section 9 cannot be contextually narrowed based on the outcome of the arbitration, though the threshold for an unsuccessful party remains higher. Alongside this, Section 47 of the Civil Procedure Code, read with Section 36 of the Arbitration Act and the ruling in M.P. Shreevastava v. Veena, gives the losing party an independent right to approach the executing court once the award becomes enforceable, to raise questions of execution, discharge, or satisfaction.
This right does not require the award-holder to have filed for execution first, and it functions outside the Section 37 appeal structure, though, per Electrosteel Steel Ltd. v. Ispat Carrier (P) Ltd., it can succeed only on narrow grounds such as nullity or want of jurisdiction. Section 9 and Section 47 CPC therefore serve different purposes at different stages of the post-award timeline, giving the losing party in Indian arbitration a more complete, if carefully bounded, set of remedies than is commonly recognised.
The question of which disputes fall outside arbitration, examined in Arbitrability of Excepted Matters Under Indian Law, also connects with the procedural remedies available to parties seeking court intervention beyond Section 9 of the Arbitration Act.
