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2013 DIGILAW 2545 (ALL)

Krishi Utpadan Mandi Samiti v. An Ads, Chowk Bazar, Bulandshahar

2013-10-07

SANJAY MISRA

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JUDGMENT Sanjay Misra, J. Heard Sri B.D. Mandhyan, learned Senior Counsel for the revisionist assisted by Sri Satish Mandhyan and Sri Uma Nath Pandey, learned counsel for the sole respondent. 2. This revision is directed against the order dated 30.07.2013 passed by the District Judge, Bulandshahr in Misc. Case No.400 of 2011 (Krishi Utpadan Mandi Samiti, Achchalda through its Secretary Vs. M/s An Ads, Chowk Bazar, Bulandshahr) whereby the objection filed by the revisionist under Section 47 CPC has been rejected in Execution Case No.1 of 2008. 3. According to Sri Mandhyan, learned Senior Counsel, the decree awarded by the U.P. Industry Felicitation Council constituted under Section 7A of U.P. Act No.32 of 1993 is illegal and has been passed without opportunity of hearing and the decreetal amount is neither payable by the revisionist nor recoverable by the respondent. He submits that under such circumstances, the detailed objection taken by the revisionist under Section 47 CPC ought to have been considered in that light and by not doing so the impugned order passed by the Executing Court is liable to be set aside. 4. Learned counsel for the respondent while referring to the affidavit filed in support of the stay application in this revision has pointed out to a decision of this Court in this case being Krishi Utpadan Mandi Samti, Hathras Vs. U.P. Industry Facilitation Council, Kanpur & others reported in 2008(5) ADJ 674 and submits that the award itself was challenged and that writ petition was dismissed by the judgment dated 23.05.2008 however, giving liberty to the petitioner to challenge the award of Industry Felicitation Council in accordance with law. 5. Learned counsel for the respondent has also pointed out that the said award was challenged by the revisionist under Section 34 of the Arbitration and Conciliation Act before the District Judge, Bulandshahr and the same was rejected by the District Judge, Bulandshahr vide his order dated 10.12.2010. 6. Against the said rejection of the application under Section 34 of the Arbitration and Conciliation Act the revisionist herein filed First Appeal From Order No. 355 of 2011 connected with other similar First Appeals and a Division Bench of this Court by the judgment dated 09.03.2011 has dismissed all the said Appeals. 7. 6. Against the said rejection of the application under Section 34 of the Arbitration and Conciliation Act the revisionist herein filed First Appeal From Order No. 355 of 2011 connected with other similar First Appeals and a Division Bench of this Court by the judgment dated 09.03.2011 has dismissed all the said Appeals. 7. Learned counsel for the respondent has placed on record a photostat copy of an order dated 19.08.2011 passed in Special Leave to Appeal (Civil) No.16643 of 2011 which was filed by the revisionist herein against the judgment dated 09.03.2011 and submits that the said Special Leave to Appeal (Civil) was dismissed by the Hon'ble Supreme Court. According to him, after the aforesaid dismissal by the Hon'ble Supreme Court there is no occasion for the Executing Court to go behind the decree and to adjudicate the objections to the decree itself taken by the revisionist. 8. From the aforesaid submission it appears that award passed under the Arbitration and Conciliation Act by the U.P. Industry Felicitation Council was assailed by the revisionist before the District Judge who rejected the objections vide his order dated 10.12.2010 and the First Appeal From Order filed there against was dismissed by the Division Bench of this Court vide the order dated 09.03.2011 and the Special Leave to Appeal against the said order dated 09.03.2011 was dismissed by the Apex Court on 19.08.2011, as such it is not permissible for the Executing Court now to go behind the decree since the challenge made under Section 47 CPC in execution proceedings cannot be with respect to the illegality of the decree itself. It is not the case that the decree is unexecutable. 9. By the impugned order dated 30.07.2013 passed in Misc. Case No.400 of 2011 arising out of Execution Case No.1 of 2008 the objection under Section 47 CPC filed by the revisionist has been rejected. The reasons given in the impugned order have been already recited herein above and therefore to say that the decree holder has played a fraud and misrepresented before the court to obtain the award is now no more open for the revisionist to challenge in these execution proceedings after the award has attained finality upto the Apex Court. 10. There is no error in the impugned order. The revision has no merit. It is, accordingly, dismissed. 11. No order is passed as to costs.