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2018 DIGILAW 226 (CAL)

Benazir Samad v. Feroze Ahmed

2018-02-06

SABYASACHI BHATTACHARYYA

body2018
JUDGMENT : 1. The present application under Article 227 of the Constitution of India is directed against an order whereby the present opposite party no. 10 was added as a party to a proceeding for enforcement of an award passed by an Arbitral Tribunal, which is in the nature of specific performance of a contract. 2. It is submitted on behalf of the award holder/petitioner that there is no scope for addition of the opposite party no.10 as a party to an execution proceeding which arises from an arbitral award which the opposite party no.10 was not a party to. 3. The opposite party no.10 submits that the outcome of the execution case will affect the said opposite party, as such he is a necessary party to the proceeding. 4. It appears from the materials on record that an award was initially passed on July 7, 2003 in favour of the present petitioner against the opposite party nos.1-series to 9. On the very date of passing of such award, both the judgment-debtors and the award holder entered into a tripartite agreement inter se and with the opposite party no.10. The opposite party no.10 submits that such agreement dated July 7, 2003 totally eclipsed the award passed on the same date and created valuable rights in favour of the opposite party no.10 in respect of the subject matter of the dispute. 5. A bare reading of Section 36 of the Arbitration and Conciliation Act, 1996 reveals that once an application is filed for enforcement of an arbitral award before the “court”, the said execution proceeding takes the colour of a regular civil proceeding and comes within the domain of the Code of Civil Procedure. As a result all trappings of the Code of Civil Procedure ought to apply to such an execution proceeding, including the provisions of Rules 97 to 101 of Order 21 of the Code. 6. As such, the opposite party no.10 has prima facie a right to get his claim, made on the basis of an independent agreement subsequent to the award sought to be executed, adjudicated in such an execution proceeding. 7. 6. As such, the opposite party no.10 has prima facie a right to get his claim, made on the basis of an independent agreement subsequent to the award sought to be executed, adjudicated in such an execution proceeding. 7. Although there is doubt as to whether such a claim of the opposite party no.10 entitles him to be added as a party to the execution proceeding, as directed by the impugned order dated January 4, 2018, in any event such claim can be agitated by the opposite party no.10 in the said proceeding. As such, it would be an exercise in futility to set aside the order of an addition of party and again to permit the opposite party no.10 to intervene in the selfsame execution proceeding by way of another application under Order 21 Rules 97 to 101 of the Code of Civil Procedure. 8. In such view of the matter, C.O. No.238 of 2018 is disposed of by modifying the impugned order dated January 4, 2018 passed by the Additional District and Sessions Judge, 17th Court at Alipore in CISM Execution no.5 of 2016, arising out of M. Execution Case no.13 of 2015, to the effect that the opposite party no.10 would be permitted to agitate his independent right as claimed in the application for addition of party filed before the executing court. Such application will now be treated to be one under Order 21 Rules 97 to 101 of the Code of Civil Procedure. The parties will be permitted to establish their respective cases in connection with such application by choosing their mode of adduction of evidence. The Additional District and Sessions Judge, 17th Court, Alipore is requested to dispose of such application afresh upon giving hearing to both sides within two months from the date of communication of this order to the said court. It is made clear that, while deciding the matter, the court below will not be influenced by any of the observations made in this order or in the impugned order dated January 4, 2018 and will be free to decide the same as per its own merit in accordance with law. 9. The order impugned herein will be deemed to be set aside to the limited extent that the opposite party no.10 has been added as a party to the execution case. 9. The order impugned herein will be deemed to be set aside to the limited extent that the opposite party no.10 has been added as a party to the execution case. It will now be open to the opposite party no.10 to agitate his disputes pursuant to the observations made above. 10. Both the award holder as well as the intervener are present in Court, along with some of the judgment debtors. However, since the interest of the judgment debtors are in no way affected by the present order, service of notice on such absentee judgment debtors is hereby dispensed with. 11. There will be no order as to costs.