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2008 DIGILAW 908 (ORI)

MOHAN KUMAR VERMA v. RAJ KISHORE MATHUR

2008-10-01

PRADIP MOHANTY

body2008
JUDGMENT : Pradip Mohanty, J. - This Civil Revision is directed against the order dated 05.11.2002 passed by the learned Civil Judge (Sr. Division), Bhawanipatna dismissing an application u/s 47 read with Section-151 CPC (M.J.C. No. 18 of 1999) filed by the Petitioner-defendant-judgment debtor for correction of the decree passed in Title Suit No. 53 of 1994. 2. The Petitioner was the Defendant in Title Suit No. 53 of 1994 and the opposite party was the Plaintiff. After getting decree, the opposite party-decree holder filed Execution Case No. 6 of 1996 for its execution. In that Execution Case, the immovable properties of the Petitioner-judgment debtor were attached and sold in public auction and such sales were confirmed in the name of decree holder-opposite party. At this stage, the Petitioner filed M.J.C. No. 18 of 1999 with a prayer for setting aside the decree on various grounds. 3. The Petitioner's case is that in Title Suit No. 53 of 1994 an arbitrator was appointed for resolution of the disputes between the parties which arose during their partnership business transaction. The arbitrator passed an ex-parte award which was also made the rule of the Court ex-parte. Soon after such ex-parte decree, the opposite party-decree holder filed Execution Case No. 6 of 1996 to execute the ex-parte decree. The Petitioner filed Civil Revision No. 349 of 1996 before this Court to set aside the ex-parte award as well as ex-parte decree. But this Court directed the Petitioner to deposit Rs. 6,00,000/- before the court and after deposit of such amount the ex-parte decree would be set aside and the arbitrator would rehear the matter by giving opportunity of hearing to both the parties. The Petitioner could not deposit the amount. In the meantime, in the Execution Case the opposite party-decree holder filed M.J.C. No. 33 of 1996 and by an order in such Misc. Case the immovable and movable properties of the Petitioner were attached. The Petitioner filed a petition before the executing Court for vacation of the attachment order and to allow him to deposit the amount as directed. In the said petition, he alleged about suppression of many facts by the decree- holder before the arbitrator for which many irregularities have crept in the ex-parte award. 4. The opposite party in his written objection categorically denied the entire allegations of the Petitioner. In the said petition, he alleged about suppression of many facts by the decree- holder before the arbitrator for which many irregularities have crept in the ex-parte award. 4. The opposite party in his written objection categorically denied the entire allegations of the Petitioner. He specifically pleaded that the application filed by the Petitioner was not maintainable in the eye of law. He stated that in every stage of the execution the judgment debtor had filed objections and the matter was set at rest after hearing the parties. Against that, the Petitioner filed cases before the High Court and before the Apex Court. After losing his cases before the High Court and the Hon'ble Apex Court, the Petitioner has filed this application mischievously with an intention to linger the proceeding in the Execution Case. 5. Learned Counsel for the Petitioner submitted that an application u/s 47 CPC was filed on the ground that the decree was passed ex parte by committing fraud on the Petitioner and that the decree being vague is not executable. He further submitted that if an award is obtained on the basis of falsehood, non-existent facts and without production of all the relevant documents, the award as well as be the decree is a nullity and such decree can not be said to be executable. In support of his contention he relied upon the decisions in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, ; Sunder Dass Vs. Ram Prakash, ; and Sohan Lal (dead) by L.Rs. Vs. Union of India and another, . 6. Learned Counsel for the opposite party submitted that the decree having been confirmed by this Court and the Hon'ble Supreme Court as back as in the year 1997, the Executing Court has no authority to interfere with the same and consider the claim of the Petitioner. Therefore, there is no illegality and infirmity in the order of the trial court. To buttress his contention, he has relied upon the decision in Bhawarlal Bhandari Vs. M/s. Universal Heavy Mechanical Lifting Enterprises, . 7. Perused the L.C.R. and the decisions cited by the parties. In the instant case, Title Suit No. 53 of 1994 was filed by the opposite party and an arbitrator was appointed. The arbitrator passed the award and after submission of the award the learned Civil Judge issued notice. M/s. Universal Heavy Mechanical Lifting Enterprises, . 7. Perused the L.C.R. and the decisions cited by the parties. In the instant case, Title Suit No. 53 of 1994 was filed by the opposite party and an arbitrator was appointed. The arbitrator passed the award and after submission of the award the learned Civil Judge issued notice. But the Petitioner refused to accept the notice. The Petitioner did not object to the award nor did he participate in the proceeding. On 16.01.1996 the award was made the rule of court and decree was drawn up. The Petitioner preferred appeal challenging the rule of the Court in Misc. Appeal No. 308 of 1996 before this Court. Since the appeal was not maintainable, the Petitioner was allowed to convert the same to Civil Revision. Civil Revision No. 349 of 1996 was registered and the same was disposed of on 30.04. 1997. The Civil Revision was allowed and the award passed by the arbitrator and the decree passed by the court below were set aside and the matter was remanded back to the arbitrator for rehearing subject to the condition that the Petitioner would deposit Rs. 6,00,000/- in the Court of Civil Judge (Sr. Division), Bhawanipatna on or before May, 31, 1991. In default of such deposit within the time allowed, the revision would be deemed to have been dismissed. If the said amount would be deposited within the time allowed, the opposite party would be at liberty to withdraw the same after furnishing security to the satisfaction of the court below. By order dated 30.04.1997 the Petitioner was granted extension till 04.08.1997 to deposit the amount. But no amount was deposited till that date. While granting extension of time, there was a specific observation that if no amount was deposited within the extended time the default clause would work out, the Civil Revision would be deemed to have been dismissed and the decree would be confirmed. The Petitioner preferred a civil revision petition in the Apex Court challenging the order dated 30.04.1997 which was dismissed. As the Petitioner did not deposit Rs. 6,00,000/-, the decree was confirmed in view of the order in Civil Revision No. 349 of 1996. Therefore, the Executing Court has no authority to interfere with the same and reconsider the claim of the Petitioner. As the Petitioner did not deposit Rs. 6,00,000/-, the decree was confirmed in view of the order in Civil Revision No. 349 of 1996. Therefore, the Executing Court has no authority to interfere with the same and reconsider the claim of the Petitioner. 8 In view of the above, this revision is devoid of any merit and the same is dismissed as such. Final Result : Dismissed