JUDGMENT Hon’ble Anjani Kumar Mishra, J.—Heard learned counsel for the parties. 2. This revision has been filed by the General Manager, North Eastern Railway, Gorakhpur representing the Union of India against the order dated 24.1.2011 passed in Execution Case No. 7 of 2001, M/s Variety Industrial Works (P) Ltd. v. Union of India, whereby an application dated 4.7.2001 (Application 10-C) for quashing the execution proceedings, has been rejected. 3. The facts of the case are that an execution application, 4-C, for execution of an Arbitration award was filed. 4. An objection was filed by the revisionist that since the arbitration proceedings had commenced in the year 1981, the execution application under the provisions of the new Act was not maintainable and was liable to be rejected. 5. It was pleaded that Case No. 231 of 1981 was filed in the Court of Civil Judge (Senior Division), Gorakhpur for appointment of Arbitrator. Relying upon the judgment in the Apex Court, it has been submitted that the arbitral proceedings are deemed to commence when an application for referring the dispute to the Arbitrator is made. This happened in 1981. The Arbitration proceedings, were therefore, under the old Act. The award of the Arbitrator, under the old Act (Arbitration Act, 1940) is required to be made Rule of the Court before it becames executable. 6. Counsel for the revisionist has placed reliance upon the decision in Uttar Pradesh State Sugar Corporation Ltd. v. Jain Construction Co. and another, (2004) 7 SCC 332 and Milkfood Ltd. v. GMC Ice Cream (P) Ltd., (2004) 7 SCC 288 , which holds that unless otherwise agreed, arbitral proceedings commence on the date a request is made that the dispute be referred for Arbitration. Therefore, in view of Section 21 of the Act, the arbitral proceedings commenced in year 1981, when the proceedings for appointment of the Arbitrator were initiated by the opposite party. 7. Rebuttal 14-C, was filed by the opposite party stating that the General Manager N.E., Railways, was appointed sole Arbitrator on 15.11.1999, after the enforcement of the new Act. The Arbitrator also proceeded in accordance with Arbitration and Conciliation Act, 1996 and therefore, there is no requirement of the award being made Rule of the Court. The execution application had therefore been filed as per Section 36 of the Act, 1996. 8. The Arbitrator also proceeded in accordance with Arbitration and Conciliation Act, 1996 and therefore, there is no requirement of the award being made Rule of the Court. The execution application had therefore been filed as per Section 36 of the Act, 1996. 8. It was also pleaded that Case No. 231 of 1981 was with regard to appointment of Arbitrator, under Section 20 of the old Act of 1940. The Arbitrator, appointed on 15.11.1999, has passed the award on 23.1.2001. 9. It has also been submitted by the opposite party that the Arbitrator wrote two letters dated 11.8.2000 and 11.9.2000 to the revisionist, clearly stating his intention to proceed in accordance with Act 1996 calling upon the revisionist to furnish their documents and comments, failing which, action would be taken in accordance with the provisions of Arbitration and Conciliation Act, 1996. 10. It is, therefore, contended that the arbitrator proceeded under the new Act and the revisionists, having participated in these proceedings, without raising any objection, are precluded from claiming to the contrary. 11. Reference has also been made to the Arbitration agreement between the parties, which provides that the contract would be governed by the law of India, for the time being in force. On the date the Arbitrator commenced proceedings, the Arbitration Act of 1940 stood repealed and therefore, the proceedings were necessarily, under the Act of 1996. 12. Reference has also been made by both the Counsel to Section 85 (2-A) and Section 21 of the Arbitration and Conciliation Act 1996. 13. From the facts noticed above, it is clear that the only point requiring consideration is whether the award which has been put to execution in the execution case, would be deemed to be one under the old Act or it is under the new Act, in which case, the award would be executable without any requirement of its being made Rule of the Court as was required under the Act of 1940. 14. It has been laid down by the Supreme Court that Arbitration proceedings are deemed to have commenced on the date, a party applies for referring a dispute to the Arbitrator. 14. It has been laid down by the Supreme Court that Arbitration proceedings are deemed to have commenced on the date, a party applies for referring a dispute to the Arbitrator. In the case, at hand the proceedings for appointment of Arbitrator were commenced in the year 1981 long before the Arbitration and Conciliation Act, 1996 came to be enforced and therefore, the Arbitration proceedings will be governed by the old Act of 1940. 15. Having said so, this Court finds that a difficulty arises on account of Sections 21 and 85 of the Arbitration and Conciliation Act 1996. 16. The words “unless, otherwise agreed by the parties” occurring in Section 21 of the Arbitration and Conciliation Act, 1996 are significant. 17. Reference is also required to Section 85 of the Arbitration and Conciliation Act, 1940, which is quoted below— “85. Repeal and savings. 1. The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940). and the Foreign Awards (Recognition and Enforcement) Act, 1961 (30 45 of 1961). are hereby repealed. 2. Notwithstanding such repeal,- a. the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force; b. all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act.” 18. The afore-noted provision contain the same words; “unless otherwise agreed by the parties” which as noticed above, occur also in Section 21 of the Arbitration and Conciliation Act, 1996. 19. Upon a conjoint reading of the aforesaid two provisions, it necessarily follows that although arbitral proceedings are deemed to commence on the date, a request is made for referring the dispute for Arbitration and the proceedings would be governed by the Arbitration Act 1940, but, in case, the parties agree, the proceedings, despite the above legal position, may be governed by the Act of 1996. 20. The controversy in the instant case, therefore, has to be resolved upon a consideration whether the parties agreed to the arbitration being conducted in accordance with the Arbitration and Conciliation Act, 1996. 21. 20. The controversy in the instant case, therefore, has to be resolved upon a consideration whether the parties agreed to the arbitration being conducted in accordance with the Arbitration and Conciliation Act, 1996. 21. In this regard, the two letters issued by the sole Arbitrator to the revisionist, referred to by counsel for the opposite party and which are available on record in the judgement of this Court passed in Civil Revision No. 595 of 2001 on 25.5.2009, are crucial. 22. It emerges that in both these letters, the sole Arbitrator has clearly stated that action would be taken in accordance with the provisions of the Arbitration and Conciliation Act 1996. 23. It is also not disputed that this observation was not objected to by the revisionist. It is, therefore clear that the Arbitrator proceeded under the Act of 1996 and the opposite party, has also proceed to file the execution case relying upon the provisions of the Act of 1996. 24. In my considered opinion, once the Arbitrator categorically stated his intention to proceed under the Act of 1996 and no objection thereto was raised by the revisionist, it must be assumed that the revisionist agreed to the application of the Arbitration and Conciliation Act 1996 in the Arbitration case. Therefore, the plea, being raised by means of this revision, is hit by the term,” unless otherwise agreed by the parties” occurring in Sections 21 and 85(2) a of Act, 1996. 25. Even if not, express, there was a tacit agreement that the arbitral proceedings before the sole Arbitrator proceed in accordance with the Arbitration and Conciliation Act 1996. 26. Therefore, the Court below has rightly held that the award of the Arbitrator is not required to be made Rule of the Court and the application for quashing the execution case under Section 36, has been rightly rejected. For the same reason, this revision is without merit. 27. The revision is accordingly, dismissed.