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1992 DIGILAW 902 (RAJ)

Manohar Singh v. Kanti Lal

1992-11-18

B.R.ARORA

body1992
JUDGMENT 1. - Petitioner Manohar Singh and the defendant Kanti Lal entered into a partnership on July 8, 1963. Some dispute arose thereafter and as per the partnership deed, which contains an arbitration clause, an application under Section 20 of the Arbitration Act was moved by the parties before the learned Additional Civil Judge No. 1, Udaipur, for appointment of an Arbitrator. Mr. Fateh Singh Mehta, Advocate, was appointed as the Arbitrator, who gave his Award on February 4, 1973. The Award was submitted in the Court. The petitioner raised certain objections to the Award given by the Arbitrator Mr. Fateh Singh Mehta. The learned Additional Civil Judge, by its order dated February 19, 1977, with certain modification, made the Award rule of the Court and a decree was passed by the learned Additional Civil Judge in terms of this Award. The decree passed by the learned Additional Civil Judge was challenged by the petitioner before the learned District Judge, Udaipur, and the appeal was ultimately decided by the learned Additional District Judge No. 1, Udaipur. The learned Additional District Judge No. 1, Udaipur, by his decree and judgement dated August 10, 1988, dismissed the appeal filed by the petitioner Manohar Singh. Aggrieved with the decree and judgement dated August 10, 1988, passed by the learned Additional District Judge No. 1, Udaipur, the petitioner preferred a revision petition before the High Court and the revision petition was, also, dismissed by the Hon'ble the Chief Justice of this Court by its order dated January 28, 1992. It was stated in Clause 5 of the Award that the defendant Manohar Singh will remain in the possession of the suit premises, i.e., the shop, for a period of three years so that his business may not be ruined and he may make an alternative arrangement and he will hand-over the vacant possession of the suit premises to the decree-holder by Magh Sudi Poonam Samvat Year 2036. It was also mentioned in Clause 5 that in case the defendant will not handover the vacant possession of the shop in question to the decreeholder Mitha Lal Dalesa by Magh Sudi Poonam Samvat Year 2036 than the plaintiff decree-holder will be entitled to get the possession of the shop in question through the Court. It was also mentioned in Clause 5 that in case the defendant will not handover the vacant possession of the shop in question to the decreeholder Mitha Lal Dalesa by Magh Sudi Poonam Samvat Year 2036 than the plaintiff decree-holder will be entitled to get the possession of the shop in question through the Court. The defendant did not hand-over the vacant possession of the shop in question by Magh Sudi Poonam Samvat Year 2036 and, therefore, the execution proceedings were initiated against the defendant in the Court of the Additional Civil Judge No. 1, Udaipur, by the decree-holder on November 30, 1988. The petitioner judgment-debtor filed objections in the execution proceedings, which were ultimately decided by the learned Additional Civil Judge No. 1, Udaipur, by its order dated August 18, 1992. The objections filed by the petitioner were rejected and the learned lower Court directed for the issuance of the warrant for the recovery of the amount as well as for the possession of the shop in question. It is against this order dated August 18, 1992, that the petitioner has preferred this revision petition. 2. It is contended by the learned Counsel for the petitioner that in the Award, the plaintiff made a demand for the amount of Rs. 14,202/-while the Arbitrator has awarded a sum of Rs. 19,986/- and he further submits that the Arbitrator has awarded the Interest, also, during the pendency of the arbitration proceedings and he, therefore, exceeded in his jurisdiction. The second contention, raised by the learned Counsel for the petitioner is that the Arbitrator had no Jurisdiction to pass an order regarding the eviction from the suit premises and for handing over the possession of the shop in question by the judgement-debtor to the decree-holder. Alternatively, it is contended that in the Award, no decree for eviction was passed. It was merely stated that if the possession of the suit premisesis not handed-over by the defendant by Magh Sudi Poonam Samvat Year 2036 to the decree-holder/plaintiff then the plaintiff will be entitled to take the possession of the shop in question through the Court, which means that the plaintiff is entitled for the possession only by way of a suit under the Rajasthan Premises (Control of Rent and Eviction) Act and he cannot be evicted in these execution proceedings. The learned Counsel for the non-petitioner, on the other hand, has supported the order passed by the Court below. 3. I have considered the submissions made by the learned Counsel for the parties. 4. It is not in dispute that in the Award, the amount of Rs. 19,986/- and the interest was awarded. The petitioner-defendant filed objections before the learned Additional Civil Judge and the learned Additional Civil Judge reduced the amount of interest from 12% per annum to 9% per annum and made the award a rule of the Court. So far as the eviction part, contained in Clause (5) of the Award, is concerned, that was maintained. The petitioner preferred an appeal before the learned Additional District Judge No. 1. Udaipur, and in that appeal, no objection was taken by the judgement-debtor (petitioner) regarding the excess amount awarded by the Arbitrator and which was made the rule of the Court. The objection regarding awarding of interest was, also, not taken by the petitioner in the appellate Court. Even these objections were not taken by the petitioner in the revision petition filed by him before this Court and that award became final and, therefore, he cannot be permitted to raise this objection which was not taken by the petitioner challenging the decree passed by the trial Court on the basis of the award in these execution proceedings. The learned lower Court was, therefore, justified in rejecting this objection raised by the learned Counsel for the petitioner. 5. The second contention, raised by the learned Counsel for the' petitioner is that no award was passed with respect to the eviction of the petitioner from the shop in question. What has been stated in the Award, which was made the rule of the Court, is that if the possession over the suit premises is not handed-over by Magh Sudi Poonam Samvat. Year 2036 then the plaintiff will be entitled to get the possession of the shop through the Court. The intention of these words is that if the defendant did not hand-over the possession then the plaintiff will be entitled to get the possession over the suit premises through the execution of the decree, which is based on the award, which was made the rule of the Court. The intention of these words is that if the defendant did not hand-over the possession then the plaintiff will be entitled to get the possession over the suit premises through the execution of the decree, which is based on the award, which was made the rule of the Court. It never meant that if the possession is not given after a period of three years then the plaintiff will file the suit for eviction against the defendant and get the suit premises vacated. The intention of the award as well as the language of the decree clearly show that the defendant was made liable to eviction through the process of the Court by the execution proceedings if the defendant does not hand-over the vacant possession of the shop in question on or before Magh Sudi Poonam Samvat Year 2036. The petitioner asked for three years' time to make alternative arrangement so that his business may not be ruined and he may be able to recover the out-standing amount from his customers and the Arbitrator granted him three years' time and he agreed to hand-over the vacant possession of the shop in question on or before Magh Sudi Poonam Samvat Year 2036. When the period of three years has already elapsed and after the elapse of the period, the petitioner twice moved applications before the learned Executing Court for the grant of some more time to hand-over the vacant possession and the time was granted by the Executing Court then now the petitioner cannot be allowed to agitate those points again which he had already agitated before the appellate Court as well as in the revision petition against the decree passed by the learned Additional Civil Judge and the learned lower Court was, therefore, justified in rejecting the application filed by the defendant-petitioner. The Executing Court cannot go beyond the decree and cannot go into any question as to the correctness of the decree and the petitioner, who has taken the advantage of the situation and was granted three years' time to hand-over the vacant possession of the suit premises, cannot, now, be allowed to raise these objections which stand finally concluded by the judgement of the Competent Courts in an appeal and the revision petition which were preferred by the petitioner challenging the award and the decree passed by the learned trial Court on the basis of the modified award. The order passed by the learned lower Court does not require any interference and the revision petition filed by the petitioner deserves to be dismissed. 6. In the result, I do not find any merit in this revision petition and the same is, therefore, dismissed.Revision dismissed. *******