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2001 DIGILAW 1374 (PNJ)

Sewa Ram v. Champat

2001-12-06

M.M.KUMAR

body2001
JUDGMENT M.M. Kumar, J. - The question which arises for determination in this revision petition is whether the decree passed by the Court on 23.7.1974 making the award pronounced by the Arbitrator on 23.7.1974 itself is without jurisdiction or a nullity being in contravention or Section 17 of the Arbitration Act, 1940 (for brevity, the "Act) or it is mere irregularity without vitiating the decree dated 23.7.1974. 2. The brief facts of the case which are necessary to decide the controversy before me are that there were some money dealings between the parties on 23.7.1974. The parties entered into an agreement to make a reference of the disputed amounts between them to Arbitrator, namely, Shri Bhagwat Swaroop. The Arbitrator allegedly conducted arbitration proceedings and filed an award in the Court of the Senior Sub Judge, Gurgaon for making it a rule of the Court. After recording the statements of decree holder and the judgment debtor the award for Rs. 5, 150/- was made rule of the Court on 23.7.1974 itself. In case of failure to make payment in instalment as stipulated in the decree, the judgment debtor was to pay interest @ 7-1/2 per cent per annum. The statement made by the judgment debtor makes an interesting reading and when translated reads as under : "The award of the Arbitrator Ex.P-2 has been read over to me and I have appointed this Arbitrator vide Annexure P.1. Thumb marked. (Champat)" 3. The decree was not complied with resulting into filing of an execution application by the decree holder on 22.3.1978. The execution application was opposed by the judgment debtor by filing objection petition under Section 47 of the Code of Civil Procedure. Various, objections were raised including the objection that the decree was obtained by the decree holder by fraud and misrepresentation and it was also alleged that the decree was passed by making the award as the rule of the Court in complete contravention of the provisions of Section 17 of the Act. The judgment debtor further contended that no notice as postulated by Section 17 of the Act was issued nor any opportunity to file reply was given by the court while passing the decree on 23.7.1974. Sustaining the objection that the decree passed by the Court lacked jurisdiction and that the decree was nullity, the learned trial court in its order dated 18.11.1980 held as under : "11. Sustaining the objection that the decree passed by the Court lacked jurisdiction and that the decree was nullity, the learned trial court in its order dated 18.11.1980 held as under : "11. It must be pointed out at the outset that when the award was presented in the Court on 23.7.1974, the learned trial Judge recorded the statements of the Arbitrator and the parties. The material statement to be referred to is that of the JD because the award had been rendered against him. The statement in original is before me as also its certified copy Ex. DH/1. All that is mentioned in the statement is that the JD had heard the award Ex. P.2 and the Arbitrator was appointed by him through Ex.P.1. Nothing else is to be found in the statement of Champat. It is not at all stated the JD requested the Court to make the award a rule of the Court. In the absence of the statement of Champat on these lines, it cannot be said that he had accepted the award as correct and that he wanted it to be made the rule of the Court. It also cannot be inferred from his statement that he did not want to file objection petition against the award. Article 115 of the Limitation Act, 1963 provides a period of 30 days for filing an application for setting aside an award. Section 17 of the Arbitration Act lays down the procedure as to how an award is to be made a rule of the Court. The court can pass judgment in terms of the award, if it sees no cause to remit the award or any matter referred to Arbitrator for reconsideration or to set aside the award. It is enjoined upon the Court to pronounce the judgment, according to the award only after the time for making an application to set aside the award had expired or such application having been made has been refused by it. At the risk of repetition I must state that in the case before this Court, the judgment debtor had not at all confessed the award. He no where indicated in his statement dated 23.7.74 that he did not intend to file objection petition against the award or that it be made the rule of the Court. At the risk of repetition I must state that in the case before this Court, the judgment debtor had not at all confessed the award. He no where indicated in his statement dated 23.7.74 that he did not intend to file objection petition against the award or that it be made the rule of the Court. It is thus, a clear case in which the impugned decree was passed in absolute contravention of Section 17 of the Arbitration Act, in as much as the decree was passed on the very day, the award was filed in the Court. The judgment in Gundapatis case is of no assistance to the decree holder because in the case before the Andhra Pradesh High Court, the appellant/judgment debtor had confessed the judgment as noted in para 1 sub-para 2 of the report. 12. Moreover, the decisions of Patna High Court and Allahabad High Court quoted by the counsel for the JD are recent in time. All the decisions are by single Bench. In the case decided by Patna High Court, it was clearly held that an order confirming the award made before the expiry of the period of filing the objections was without jurisdiction. Similarly in Ramji Lals case decided by Allahabad High Court, it was laid down that in view of the provisions of Section 17 of the Arbitration Act, it was not open to the Court to pronounce judgment on the very day the arbitration award was filed in the Court. The matter in hand is batter governed by these authorities. 13. Another contention of the Counsel for the DH is that the executing Court cannot go behind the decree. There is no dispute with the proposition of law and for that reason, it is not necessary to quote the authorities on that subject. But at the same time, it is also well settled that the proposition quoted by the counsel for the DH is not absolute. It admits of the exception where the executing court can examine if the decree was passed by the Court having jurisdiction and that the decree was not a nullity. On this aspect the case, following authorities can be cited with advantages : (i) Chandrika Misir and another v. Bhaiyalal, AIR 1973 Supreme Court 2391 and (ii) Naib Singh and others v. Mihan Singh and others, 1976 PLJ page 100. 18. On this aspect the case, following authorities can be cited with advantages : (i) Chandrika Misir and another v. Bhaiyalal, AIR 1973 Supreme Court 2391 and (ii) Naib Singh and others v. Mihan Singh and others, 1976 PLJ page 100. 18. As a consequence of what has been held under issue No. 1 above, objection petition succeeds and the execution application is dismissed. In the peculiar circumstances of the case, I leave the parties to bear their own costs. File be consigned to record room." 4. The present revision petition filed under Section 115 of the Code of Civil Procedure is directed against the order passed by the learned executing Court dismissing the execution application on 18.11.1980. 5. I have heard Shri Alok Jain, learned counsel for the petitioner and Ms. Bhavna Walia, learned counsel for the respondent and have with their assistance perused the record. 6. Shri Alok Jain, Advocate submitted that the executing Court had no jurisdiction to set aside a decree passed by a Court of competent jurisdiction merely because there was non-compliance of the directory provisions of Section 17 of the Act. He further submitted that against the judgment and decree dated 23.7.1974 a remedy of appeal under Section 39 of the Act has been specifically provided which could have been invoked by the judgment debtor. Having failed to invoke the remedy of appeal it was not open to the judgment debtor to seek amendment of the decree to achieve the object which could have been achieved by filing an appeal. He also submitted that the learned trial court has acted with illegality and had to jurisdiction to set aside the decree passed by a court of competent jurisdiction. Insofar as the violation of section 17 of the Act committed by the Civil Court while passing the decree is concerned, the learned counsel submitted that it was a mere irregularity and it cannot be said that the Civil Court while passing the decree did not have the jurisdiction. In support or his submission, the learned counsel has cited judgments in the cases of Bankey Lal and another v. Chotey Miyan Abdul Shakur, AIR 1931 Allahabad 453, Veeravalli Perayya (died) and others v. Sukhavasi Chenchu Subba Rao and others, AIR 1961 Andhra Pradesh 159 and Nirmaljit Singh and others v. Harnam Singh and others, 1979 PLR 583. 7. In support or his submission, the learned counsel has cited judgments in the cases of Bankey Lal and another v. Chotey Miyan Abdul Shakur, AIR 1931 Allahabad 453, Veeravalli Perayya (died) and others v. Sukhavasi Chenchu Subba Rao and others, AIR 1961 Andhra Pradesh 159 and Nirmaljit Singh and others v. Harnam Singh and others, 1979 PLR 583. 7. For the proposition that a decree of the Civil Court cannot be set aside on the ground that it contravened the provisions of Section 17 of the Act, a bare glance of these judgments makes it obvious that none of the judgment(s) is attracted to the facts of the present case. In all these cases the question decided by the courts is whether a decree of the Civil Court making the award as rule of the Court would be vitiated merely on the ground that the decree has been passed making the award as rule of the Court before the expiry of period of 30 days provided by the Article 119 of the Limitation Act. The Courts have held that the passing of the decree before the period of 30 days would not vitiate the decree making the award as rule of the Court. No judgment has been cited before me where a notice itself was not issued as was required to be issued. 8. On the other hand, Ms. Bhavna Walia, learned counsel for the respondent relied on Ganeshmal Bhawarlal v. Kesoram Cotton Mills Ltd., AIR 1952 Calcutta 10, Madan Lal v. Sunder Lal and another, AIR 1967 S.C. 1233, Ramji Lal v. Ram Sanehi Lal Pandey, AIR 1978 Allahabad 351 and Punjab Small Industries and Export Corporation Ltd., Chandigarh v. Sardul Singh and others, AIR 1989 Punjab and Haryana 21 and argued that it was mandatory under section 17 of the Act for the Court passing the decree making the award as rule of the Court to issue notice to the judgment debtor and its failure to do so rendered the decree passed on 23.3.1974 as a nullity. Such a decree, according to the learned counsel, can be set aside even in execution because the plea taken in the objection petition goes to the root of the case. Such a decree, according to the learned counsel, can be set aside even in execution because the plea taken in the objection petition goes to the root of the case. To support her latter submissions, the learned counsel has relied upon The State of Rajasthan v. Rao Raja Kalyan Singh, AIR 1971 S.C. 2018, Chandrika Misir and another v. Bhaiyalal, AIR 1973 S.C. 2391 and Naib Singh and others v. Mihan Singh and others,1976 PLJ 100. 9. I have thoughtfully considered the submissions made by the learned counsel for the parties and I am of the view that in the absence of bare non- compliance of Section 17 of the Act the Civil Court passing the decree making the award as rule of the Court cannot assume the jurisdiction. Therefore, the impugned order dated 18.11.1980 passed by the executing court is liable to be upheld and this revision petition is liable to be dismissed. The facts of this case reveal that the arbitration agreement was entered into between the parties on 23.7.1974; the Arbitrator was appointed on the same day; the award pronounced on the same day; and the Civil Court passed the decree making the award as rule of the Court on the same day as well. The statement of the Judgment debtor recorded by the Civil Court passing the decree on 23.7.1974 also shows that the judgment debtor did not concede that the award was correct nor the judgment debtor stated that before the Court that the award be made as rule of the Court. There was no statement made by the judgment debtor that he did not wish to file any objection to the award. In the absence of such a specific statement it cannot be presumed that the judgment debtor waived all his objections to the award which could have been filed only if a required notice was given and opportunity to file objection was provided. In the absence of compliance of the provisions of Section 17 of the Act of Act the judgment and decree passed by the Civil Court on 23.7.1974 would be a decree without jurisdiction and would also be a nullity. In the absence of compliance of the provisions of Section 17 of the Act of Act the judgment and decree passed by the Civil Court on 23.7.1974 would be a decree without jurisdiction and would also be a nullity. This view is supported by the judgments of the Supreme Court in the cases of Smt. Bismillah v. Janeshwar Prasad and others, AIR 1990 SC 540, Sunder Dass v. Ram Parkash, AIR 1977 SC 1201 and Chandrika Misir and another v. Bhaiyalal, AIR 1973 SC 2391. For the reasons stated above, the revision petition fails and is dismissed. Revision dismissed.