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2001 DIGILAW 106 (HP)

J. M. BUILDERS v. UNION OF INDIA

2001-06-05

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.—This objection petition under Section 47 of the Code of Civil Procedure (hereafter referred to as the Code) has been preferred by the Objector Judgment Debtor (hereafter referred to as the JD). 2. The brief facts leading to the filing of this objection petition are that pursuant to an arbitration agreement between the parties, the dispute which arose between them was referred for arbitration and the arbitrator made an award dated May 1, 1991 in favour of the DH. When the award was filed, the parties failed to file objections against the award within the prescribed period. After expiry of the prescribed period, both the parties filed objections against the award. However, the objection petitions filed by the parties were dismissed as barred by limitation and as a consequence, the award was made rule of the Court vide judgment dated 21.9.1993 in Civil Suit No. 98 of 1991 and in terms thereof, a decree was passed in favour of the DH and against the JD. The JD, being aggrieved, preferred FAO No. 141 of 1994 against the said judgment and decree which was also dismissed by a Division Bench of this Court vide judgment dated March 1, 1999. Thereafter, the DH preferred an application for execution of the decree in its favour being Execution Petition No. 8 of 1994 which was dismissed as partly satisfied on 17.10.1994. For execution of the unsatisfied part of the decree, the DH has filed the present execution petition in which these objections have been preferred by the JD. 3. The DH has resisted the objection petition by filing a reply thereto. 4. I have heard the learned Counsel for the parties and have also gone through the records. 5. In so far as the specific decretal amount is decreed, the liability to pay such amount after deducting the amount already paid/deposited, is not disputed by the JD. The dispute raised is in respect of the award as made in respect of claim No. 19 by the arbitrator. The material part of the award which forms part of the decree sought to be executed and is objected to reads as follows: "19. Claim No. 19 for Rs. 4,80,000 on a/c of not demolishing bldgs, which were to be demolished as per CA.—Claim established. Union of India represented by CWE Mamun either to handover to claimant (M/ s. JM Builders and Engrs.) Bldg. Claim No. 19 for Rs. 4,80,000 on a/c of not demolishing bldgs, which were to be demolished as per CA.—Claim established. Union of India represented by CWE Mamun either to handover to claimant (M/ s. JM Builders and Engrs.) Bldg. No. B-32-33 in T lines and bldg. Nos. 4 to 5 and 7 to 18 in L lines (Bldg. No. 6 not found existing on ground) or get the cost of bldg. No. B-32-33 in T lines and bldg. Nos. 4 to 5 and 7 to 18 in L lines assessed by a Government Valuer and give the assessed cost to the claimant (M/s. JM Builders and Engrs.).” 6. The objections raised by the JD in the objection petition in this regard read as follows : "2. That the spirit of the contract was to provide new latrines and bath rooms after demolition of certain existing old latrines and bath rooms. The intention of contract was never to demolish any structurally sound buildings being used for any other purpose. The perusal of the contract agreement would reveal that the credit of just Rs. 1,153 has been given for demolition of all the buildings included in the contract. Therefore, it just does not stand to logic or reason that such a huge amount of Rs. 4.80 lacs be claimed by the claimant for not handing over structurally sound buildings, which in any case were not intended to be demolished. The Arbitrator was not applied his mind in this important aspect and has grossly erred and misconducted himself in that, he has not specified the amount but left in vague to be valued by the Government valuer and made the award indefinite. The Arbitrator has violated the terms of the contract and the award under Claim No. 19 is void. 3. That in the facts and circumstances of the case, the contractor is not entitled for any claim under Claim No. 19 of the Award.” 7. It is evident from a bare reading of the above objections that such objections could have been and ought to have been filed on receipt of the notice about the filing of the award in the Court. Though objections were filed by the parties but those were dismissed as time barred. Even an appeal preferred by the JD against dismissal of its objections was dismissed and the decree, thus, became final. 8. Though objections were filed by the parties but those were dismissed as time barred. Even an appeal preferred by the JD against dismissal of its objections was dismissed and the decree, thus, became final. 8. The relevant part of Section 47 of the Code reads as follows: "47. Questions to be determined by the Court executing decree.—(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit." 9. It is apparent from the perusal of the aforesaid provisions that Section 47 embraces the matters concerning the execution of an existing decree between the parties and covers the questions relating to the execution, discharge or satisfaction of the decree. Evidently, the expression "questions" as used in the Section means such questions which can properly arise or be raised in the execution proceedings. In other words, such questions must relate to the execution of the decree. The executing Court, however, cannot go behind the decree and cannot question the correctness or the validity of the decree except where it is a nullity. 10. In the instant case, the decree under execution has been passed by a Court of competent jurisdiction under the provisions of the Arbitration Act and has been upheld in appeal, therefore, the decisions rendered in the suit and the appeal have become final and binding and cannot be called in question in these execution proceedings. 11. In view of the above discussion, the objections raised by the JD in this objection petition cannot be gone into by this Court being the executing Court and are, therefore, not maintainable. 12. As a result, the objection petition is dismissed. Objection petition dismissed. -