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2011 DIGILAW 692 (JK)

Shora & Co. v. Managing Director J&K Handicrafts

2011-12-09

HASNAIN MASSODI

body2011
1. The Civil Revision on hand is directed against the order of Ld. Addl. District Judge Srinagar in execution petition titled Shora and Co. v/s Managing Director, J&K Handicrafts (file No.07/Execution) whereby Ld. Judge has held the decree dated 25.11.1991 without jurisdiction, a nullity in law and thus not executable. 2. The background facts discernible from the record available on the file need to be noticed, in the first instance. 3. The petitioner on 31.10.1992 filed an application in this Court under Section 20 J&K Arbitration Act, for reference of disputes that had arisen between the parties, to the Arbitrator. The application was allowed and the dispute referred to the Arbitrator designated in the agreement. The Arbitrator entered upon the reference and submitted his award to the Court. Notice on filing of the award was issued to the parties and the parties given an opportunity to file objections, if any, to the award and show cause why the award be not made rule of the Court. 4. The petitioner on 07.07.1983 submitted a petition under Section 30/33 J&K Arbitration Act, 1952 and sought setting aside of the award on the grounds urged in the petition. This Court on 29.09.1983 issues were framed and petitioner asked to adduce evidence, if any, to substantiate the grounds set out in the petition under section 30/33 of the Act. The matter was thereafter transferred to the Court of Additional District Judge, Srinagar for its disposal under law. Ld. Additional District Judge, Srinagar, on 25.11.1991 allowed the petition under Section 30/33 of the Act, and passed decree in exparte in favour of the petitioner. The petitioner some time thereafter filed an execution petition seeking execution of the decree. The respondent/judgment debtor, on 26.05.2000 filed an application under Section 47 CPC for dismissal of the execution petition. 5. The respondent judgement debtor's case before the executing Court was that Ld. Additional District Judge, Srinagar, even if satisfied that there was merit in the petitioner's case and the award deserved to be set aside, was to remit the matter to the Arbitrator for making a fresh award in light of the observations made by the Court. 5. The respondent judgement debtor's case before the executing Court was that Ld. Additional District Judge, Srinagar, even if satisfied that there was merit in the petitioner's case and the award deserved to be set aside, was to remit the matter to the Arbitrator for making a fresh award in light of the observations made by the Court. It was insisted that the Court had no jurisdiction to pass exparte decree in favour of the petitioner and against the respondents, once it found a case made out under Section 30/33 of the J&K Arbitration Act, 1952 for setting aside the award. The respondents pleaded that the exparte decree passed by the Court, execution whereof was sought in the execution petition, was without jurisdiction, a nullity in the eye of law and not at all executable. 6. Ld. Addl. District Judge, Srinagar on perusal of award and going through record, found merit in the case set up by the respondent/judgment debtor and accordingly allowed the application for termination of the execution proceedings and dismissed the execution petition. 7. The order of Ld. Addl. District Judge dated 26.08.2007 whereby execution was dismissed is assailed in the present revision on the ground that the executing Court committed error in law and fact while passing the impugned order; that impugned order has been passed in violation of the settled principles of law; that the decree passed by the Court was not questioned in appeal, got set aside or otherwise quashed before the Competent Court and was even partly satisfied by the judgement debtor and that the executing Court has over stepped it's jurisdiction while passing the impugned order. It is pleaded that the executing Court had no jurisdiction to go beyond decree while dealing with any application under Section 47 CPC. It is pointed out that the Executing Court while dealing with the application under Section 47 CPC has limited jurisdiction and is not competent to re-appreciate the evidence or look in to the background in which the decree was passed. The order impugned in the petition is also assailed on the ground that the executing Court while passing the impugned order has not at all considered the conduct of the respondents after the exparte decree was passed and allowed challenge to the decree at a bleated stage. 8. I have gone through the petition and trial record. The order impugned in the petition is also assailed on the ground that the executing Court while passing the impugned order has not at all considered the conduct of the respondents after the exparte decree was passed and allowed challenge to the decree at a bleated stage. 8. I have gone through the petition and trial record. I have heard Counsel for the parties. 9. The general principle is that an executing Court has to execute a decree as it is, and not to go behind the decree to revisit the facts and give a second look to the controversy between the parties that is expected to have been dealt with by the trial Court. It is not difficult to find out rationale or logic behind the principle in case parties are permitted to re-agitate, what has been looked into and dealt with by the trial Court during trial of a suit, the litigation between the parties can never come to an end. In such a case, the executing Court may have to assume role of an appellate Court which would be in conflict within principles of hierarchy of Courts as well as public policy. However, Section 47 Civil Procedure Code, carves out an exception to the aforestated general principle. It provides that all the questions arising between the parties in a suit in which a 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. The purpose and object of Section 47 is to prevent multiplicity of suits. It provides for disposal of objection to the execution without pushing the parties to fresh litigation and complying either of them to raise questions in a separate suit. The provision authorises the Court ask it to execute a decree, to decide all questions arising between the parties relating to execution, discharge or satisfaction of a decree. For the applicability of Section 47 CPC two conditions are to be satisfied; Firstly, the question must be one arising between the parties to the suit in which the decree was passed or their representatives. Secondly, the question must relate to execution, discharge or satisfaction of decree. 10. For the applicability of Section 47 CPC two conditions are to be satisfied; Firstly, the question must be one arising between the parties to the suit in which the decree was passed or their representatives. Secondly, the question must relate to execution, discharge or satisfaction of decree. 10. The executing Court is required to examine the substance of the objection and its true nature and not to be guided by the subject or title of the application. It is well settled by now that the question raised by the judgement debtor that the decree sought to be executed is nullity, is a question to be determined by the executing Court under Section 47 Civil Procedure Code. However, the objections to a decree on the ground of legality or correctness is to be distinguished from the challenge on the ground of nullity. While the Court under Section 47 CPC may look into the question of nullity of a decree, the provision cannot be pressed into service to deal with legality or correctness of a decree. One of the instances of the decree being held null is where the decree is passed without jurisdiction. The Court executing the decree is competent to embark upon an inquiry to find out whether the Court which passed the decree had no jurisdiction to pass such a decree. Again the question whether decree is capable of execution or not falls within the ambit of Section 47 CPC and the executing Court is competent to decide whether a decree is executable or incapable of execution. To illustrate a decree vague in its terms or a decree that becomes incapable of execution due to the events subsequent to the passing of decree or because of the subsequent legislation or where the decree merely declares the rights' of the parties — are the questions that may be dealt with by the executing Court. 11. The executing Court while deciding a question falling within the purview of Section 47 CPC is competent to look into the pleadings and the judgement, — formal expressions whereof is the decree sought to be executed. In Bhavan Vaja v. Solanki Hanuji Khodaji, AIR 1972 SC 1371 , the Supreme Court reiterated the principle and held that; "Although an executing Court cannot go behind the decree under execution. In Bhavan Vaja v. Solanki Hanuji Khodaji, AIR 1972 SC 1371 , the Supreme Court reiterated the principle and held that; "Although an executing Court cannot go behind the decree under execution. But, that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree" In Jananendra Mohan Bhaduri v. Rabindra Nath Chakravarti, AIR 1933 P.C. 61, the judicial Committee held that: "Where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899 an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1988, there is not provision for making a decree upon an award, was competent, that was a case in which the decree was on the face of the record without jurisdiction" Jananendra Mohan Bhaduri's case was followed by the Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, AIR 1970 SC 1475 observing: "When a decree which is a nullity., for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. Where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which would have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jananendra Mohan Bhaduri v. Rabindra Nath Chakravarti, AIR 1933 P.C. 61, the judicial Committee held that "Where a decree was passed upon on award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899,there is no provision for making a decree upon an award, was competent, that was a case in which the decree was on the face of the record without jurisdiction " 12. In the case in hand the Court even if satisfied that the award made by the Arbitrator was liable to be set aside, the only course open to the Court was to remit the award and ask the Arbitrator to pass the award afresh having regard to the observations made and not to passe the decree. The Court obviously lacked the jurisdiction to pass the decree sought to be executed and such absence of jurisdiction was apparent and not to be dug out by diving deep into the record and by making elaborate and exhaustive discussion on the controversy. 13. There is no reason to find fault with judgement of learned Additional District Judge, Srinagar impugned in the petition which is elaborate and has correctly dealt with all the aspects of the matter before it at the touch stone of case law on the subject. 14. For the reasons discussed above, challenge to the order impugned must fail. The Civil Revision is accordingly dismissed.