State of Bihar v. Din Dayal Singh — 1979 DIGILAW 5 (PAT)

JUDGMENT: Shambhu Pd. Singh, J. This Civil revision application by the Judgment debtor, State of Bihar, arises out of an execution proceeding. The decree holder opposite party obtained a decree on the basis of an award on 1st of May, 1971 and is executing that decree. After the decree was obtained a notice under section 82 of the Code of Civil procedure (hereinafter referred to as the Code) was served upon the judgment debtor petitioner and it filed two miscellaneous cases one objecting to the appointment of the arbitrator and another for setting aside the exparte decree both on the ground of absence of notice. Both the miscellaneous cases were dismissed by the court below and (be petitioner came ag1inst (hose orders to this court. The case against the order refusing to set aside the decree was registered as miscellaneous appeal and (be case against the order refusing to set aside the appointment of arbitrator was registered as civil revision. The civil revision was dismissed on the ground that the petitioner bad notice of the proceeding under section 8 (2) of the Arbitration Act. The miscellaneous appeal, however was allowed and the case was remanded for disposal of application under section 5 of the Limitation Act filed in this court for condoning the delay in filing the application for setting aside the ex-parte decree before the court below The Court below held that the judgment debtor-petitioner had not been able to make out sufficient cause for condoning the delay and dismissed that application as well as the main application for setting aside the exparte decree. Against that order the petitioner again came to this court and his case was numbered as miscellaneous appeal no. 166 of 1976 which was dismissed by N. P. Singh and P. S. Sahay. JJ. by their order dated 29th of June, 1977. 2. During the pendency of the said appeal namely, miscellaneous appeal no. 166 of 1976, by an order dated 28th October, 1976 the petitioner was granted stay on the condition that it would deposit the decretal amount of Rs. 4,54.546/-in the court below within one month from that date. The amount was deposited. After dismissal of the miscellaneous appeal no. 166 of 1976 by this Court, the decree holder opposite party made an application for withdrawal of the said amount of Rs. 4, 54, 546/-on 30th of June, 1977. 4,54.546/-in the court below within one month from that date. The amount was deposited. After dismissal of the miscellaneous appeal no. 166 of 1976 by this Court, the decree holder opposite party made an application for withdrawal of the said amount of Rs. 4, 54, 546/-on 30th of June, 1977. A copy of the petition for withdrawal was served on the counsel for t he petitioner but no objection to that was raised. An order for payment was passed on 9th of July, 1977. The 10th July, 1977 was date fixed in the case but that was a Sunday and the record of the case was, therefore, put up before the court on 11th of July, 1977. The judgment debtor petitioner, It appears, filed a petition on 13th of July, 1977 that it would file a rejoinder to the decree holder's execution On 17th of August. 1977, the Judgment debtor petitioner filed a petition stating that the decree could Dot be executed and the execution proceeding could not proceed as the decree itself was a nullity. Later on, the judgment debtor-petitioner also filed a petition that the decree bolder opposite parry be directed to deposit the amount already withdrawn by him. The executing court has rejected both these applications holding that the decree was not a nullity and that the decree holder could not be asked to deposit the amount already withdrawn by him. There was also a prayer on behalf of the decree holder for payment of interest on the decretal dues by the judgment debtor. That prayer of the decree holder has also been allowed by the court below by the same order. 3. Learned counsel for the petitioner has challenged before this court in this civil revision the order of the court below recording findings as aforesaid mainly on two grounds, viz. firstly that as no notice under section 14 (2) of the Arbitration Act was served on the judgment debtor-petitioner before the award was made a rule of the court and a decree was passed, the decree Was a nullity and secondly that as the decree was silent as to the interest and did not grant any, the order of the executing court allowing interest on the decretal dues is illegal. The court below has relied on a Bench decision of this Court in Makeshwar Misra, V. Laliteshwar Pd. Singh alias Siya Ram Singh and others1. The court below has relied on a Bench decision of this Court in Makeshwar Misra, V. Laliteshwar Pd. Singh alias Siya Ram Singh and others1. Learned Counsel for the decree holder opposite party bas also relied on that decision of this court in support of the proposition that want of notice under section 14 of the Arbitration Act does not make the decree based on the award a nullity. That case, however, merely lays down that if notice of making and signing of an award by arbitrators is not given to parties as required by sub-section (1) of section 14 of the Arbitration Act that does not make the award invalid. It did not deal with, the effect of absence of notice under sub section (2) of that section. Sub• section (2) requires that the court shall give notice to the parties if and when an award is filed before it by the arbitrators. On the other hand, learned counsel for the judgment debtor petitioner has relied on a Bench decision of Andhra Pradesh in Badarla Rarnakri8hnarnrna and others V. Vattikonda Lakshmibayamma and others2 which lays down that the commission by the court to intimate the parties of the filing of the award is against a mandatory provision because it is designed to give an opportunity to parties to file their objections against the award, the non-compliance of which will certainly vitiate the award. The expression "shall" has been used both in Sub-sections (1) and (2) of section 14 of the Arbitration Act. As already stated a Bench decision of this court has held that absence of notice of making and signing of an award by the arbitrators does not vitiate the award. i. e. the provisions of the said sub sections are not mandatory. On the other hand a Bench decision of the Andhra Pradesh has taken a different view and with reference to the use of expression "Shall" in sub section (2) in the said section held that absence of notice under sub• section (2) will vitiate the award. It is of some significance that the said Bench decision of the Andhra Pradesh does not lay down that if a decree is passed on that award that would be a nullity. As in that case the reference to the arbitration was through the court, the award was not held invalid for absence of notice. It is of some significance that the said Bench decision of the Andhra Pradesh does not lay down that if a decree is passed on that award that would be a nullity. As in that case the reference to the arbitration was through the court, the award was not held invalid for absence of notice. The learned judges of Andhra Pradesh relied upon a case Venkataramayya V. Papayya3 while making the observation referred to earlier that in absence of notice the award will stand vitiated. In that case the decree had been set aside, If a decree is nullity it need not be set aside. It has to be treated as void. In the present case as already observed earlier the judgment debtor petitioner did make an application for setting aside the decree and that application failed. It did not appear to have taken a ground in that application for setting aside the decree that it was vitiated for want of notice under section 14 (2) of the Arbitration Act. Again, as stated earlier, the Judgment debtor-petitioner had notice of the tiling of the petition for withdrawal of the money deposited in the execution case. It did not raise an objection even to that withdrawal petition and did not take up t he ground that the money could not be withdrawn by the decree holder as the doc roe being a nullity he was not entitled to it. 4. It is now well-settled that principle of constructive resjudicata applies even to execution proceedings and a plea which could have been taken at an earlier stage of the execution proceeding if not taken it cannot be allowed to be taken subsequently in the same execution case. If any authority is needed reference may be made to a full Bench decision of this Court in Ba1jnarh Prasad Sah V. Rampbal Sahni and another4, Failure on the part or the court to do something which it is enjoined upon to do does not make a decree nullity. It is well known that section 3 of the Limitation Act is peremptory and according to it, it is the duty of the court to take notice of this provision and give effect to it even though the point of Limitation is not taken in the pleadings. It is well known that section 3 of the Limitation Act is peremptory and according to it, it is the duty of the court to take notice of this provision and give effect to it even though the point of Limitation is not taken in the pleadings. But if a decree is passed in a suit barred by time by a court having jurisdiction over the party and subject matter, the decree is not a nullity. It was so held In Illyavira Mathai, V. Varkey Varkey and anothrs5 with the observation :- "If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would Dot be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject matter and it bad the jurisdiction over the party and therefore, merely because it made an error in deciding a vital issue. In the suit, it cannot be said that it bas acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong the decrees rendered by them cannot be treated as nullities". Against the aforesaid observations reliance was placed before the Supreme court on a decision of the Privy Council in Maqbul Ahmad V. Onkar Pratap Narain Singh6 and the learned Judges of the Supreme Court while dealing with that decision of the Privy Council said:- "The Privy Council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of la w can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity." 5. If the party aggrieved does not take appropriate steps to have that error corrected the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity." 5. For the aforesaid reasons I am not inclined to accept the contention of learned counsel for the judgment debtor-petitioner that the decree under execution is a nullity for absence on the part of the court to give notice of the filing of the award as required under section 14 (2) of the Arbitration Act. I am further of the opinion that this plea of the judgment debtor-petitioner that the decree is a nullity which was taken only in the petition filed On 17th of August, 1977 is barred by doctrine of constructive resjudicata by the judgment passed by the executing court dismissing its petition under Order 9 Rule 13 of the Code which was subject matter of appeal before this Court in miscellaneous appeal no. 166 of 1976 as well as by the judgment of this court in the said appeal. If that judgment operates as constructive resjudicata otherwise, a mere observation therein. "If the decree itself is a nullity, as has been submitted on behalf of the appellant then that objection can be taken during the execution proceeding and the court will decide the said question in accordance with law" will not entitle the judgment debtor-petitioner to urge that that Judgment would not operate as resjudicata. If any decision is needed in support of this proposition. I would like to refer to the decision of the Privy Council in Fateh Singh and others V. Jagannath Bakhsh Singh & ors7. I am further of the opinion that the aforesaid plea that the decree is a nullity is also barred by doctrine of constructive resjudicata as it was not raised by the judgment debtor-petitioner in the execution proceeding itself fit earlier stages when it could and ought to have been raised. 5. Now taking for consideration the contention of learned counsel for the judgment debtor-petitioner that the order for payment of interest on the decretal dues as passed by the executing court is illegal. I find that there is some substance in it. 5. Now taking for consideration the contention of learned counsel for the judgment debtor-petitioner that the order for payment of interest on the decretal dues as passed by the executing court is illegal. I find that there is some substance in it. Section 34 (2) of the Code itself lays dowo- "Where such a decree is silent with respect to the payment of further interest on such Principal sum as aforesaid from the date of the decree to the date of payment or other earlier date the court shall be deemed to have refused such interest and a separate suit therefore shall not lie." In Gordhandas Madhavji and others V. M/s Valmji Khetri8 the learned Judges observed that in the matter of grant of interest section 34 cannot be invoked where the court is acting under Order 20, Rule II, Sub-Rule (1) or (2) of the Code. Nothing has been placed before us by learned Counsel for the Judgment debtor-petitioner who relied on this decision that in the instant case the court below or this court at any stage acted under Order 20, Rule 11. Sub rule (1) or (2) of the Code. Even for past interest the law is well settled as laid down in Bengal Nagpur Railway Go. Ltd. V. Ruttanji Romji and others9 that in the absence of any usages or contract expressed or implied or of any provision of la w to justify the award of interest on the decretal amount for the period before the institution of the suit interest for that period could not be allowed by way of damages caused to the respondent for the wrongful detention of their money. However, in the instant case that question does not arise for the period up to the date of the decree, the decree holder will be entitled to only that amount which has been decreed. If it includes interest he will be entitled to it, if it does not, he will not be entitled to it. So far interest from the date of the decree is concerned in view of the provisions of section 34 of the Code and in absence of any direction in the decree for payment of future interest he will not be entitled to it, but if the amount of Rs. So far interest from the date of the decree is concerned in view of the provisions of section 34 of the Code and in absence of any direction in the decree for payment of future interest he will not be entitled to it, but if the amount of Rs. 4.54,546/-which was deposited by the judgment-debtor under orders of this court and which has already been withdrawn by the decree-holder includes some amount of interest as well, the judgment debtor-petitioner shall not be entitled to refund of it for it did not raise objection to that before or at the time of the withdrawal. The decree holder will not be entitled to any further amount from the judgment-debtor petitioner by way of future interest as ordered by the court below. 7. In the result. The application is allowed in part and the order of the court below is modified on the question of payment of future interest as indicated in the preceding paragraph. In the circumstances of the case, there will be no order as to costs. Application allowed in part.