ORDER : 1. Heard Mr. Sumeet Gadodia, Counsel appearing for the petitioner and Mr. Mr. Vimal Kirti Singh Counsel appearing for the respondents. 2. This writ petition has been filed by the writ petitioner for the following reliefs: “a. For quashing the order dated 1st March, 2014 passed by the learned Sub-Judge-VIII, Ranchi in Execution Case No. 03(A)/2005 whereby and whereunder the learned Sub-Judge-VIII, while executing the award passed by the sole Arbitrator, has refused the prayer of the petitioner/decree-holder with respect to execution of the award vis-a-vis payment of penalty/compensation of the 14th flat to the petitioner, as being illegal and beyond the scope of arbitral award/decree passed by the sole arbitrator. b. For issuance of further appropriate writ/order/direction directing the learned executing court to execute the award/decree passed by the sole Arbitrator and direct the Respondent-M/s Vardaan Builders (For short 'Builder') to make payment of penalty/compensation amounting to Rs. 17,85,000/- for delay in delivery of possession of the 14th flat to the petitioner-owner in terms of the award/decree. c. For issuance of any other appropriate writ(s)/order(s)/direction(s) as your Lordships may deem fit and proper in the facts and circumstances of the case.” 3. The facts of the case as submitted by the counsel for the petitioner is as follows:- i. The petitioner along with his family members is the owner of 33 kathas of land in M.S. Plot no. 1480 Holding no. 1186 B situated in Ward No. 7 (old)/19 (new) Ward No. 17 (New) at 70, S.K. Sahay Road, Ranchi, P.S. Lalpur, District-Ranchi. ii. The petitioner entered into an agreement on 01.10.1998 with the respondents/Builders and the terms and conditions were specifically set out in various articles of the agreement for development of multi storied apartment. As per the said agreement, the tentative construction comprising the total built-up area was assessed as of 59,400 sq. ft. It was also specified that the owner's share will be 16,038 sq. ft. i.e. 27% of the total area and the remaining area 43,362 sq. ft. being 73% of the total built-up area was supposed to be builders’ share. However, disputes arose between the petitioner-owner of the land and the respondents-builders with respect to the said development agreement including the handing over the share of the petitioner by the said developer (Respondent-Builder) as per stipulations made in the agreement. ft. being 73% of the total built-up area was supposed to be builders’ share. However, disputes arose between the petitioner-owner of the land and the respondents-builders with respect to the said development agreement including the handing over the share of the petitioner by the said developer (Respondent-Builder) as per stipulations made in the agreement. Under the circumstances, arbitration clause of the development agreement was invoked by the petitioner and the matter was ultimately referred for arbitration to the sole Arbitrator namely, Hon'ble Mr. Justice P.K. Sarkar, retired Judge of Hon’ble Patna High Court. iii. The sole Arbitrator passed an award dated 31.10.2004 and decide the disputes between the parties. The award passed by the sole Arbitrator is annexed at Annexure-1 to the writ petition. Some relevant extracts of the Award is quoted herein below with ready reference is as under: “(38) Issue No.9: i. In the result of the discussions above, I am of the opinion that the owner claimant is entitled to possession of the 14 flats containing built up area of 16672.3 Sq. feet along with 27 p.c. of the parking space and 50 p.c. of the roof area. Out of the above 14 flats containing built up area of 16038 sq.ft. The owner claimant is entitled 13 flats alongwith 27 p.c. of the parking space as mentioned in the report of the Commissioner within 15 days from today and the possession of the remaining one flat containing the remaining portion of 27 p.c. of the owner share will be given to the owner claimant within 15 days of payment of Rs. 6 lakhs the security amount and Rs. 3 lakhs as additional amount for the deviation in specification of the construction work along with interest at the rate 12 p.c. on aforesaid Rs. 9 lakhs from today i.e. the date of award till payment. 6 lakhs the security amount and Rs. 3 lakhs as additional amount for the deviation in specification of the construction work along with interest at the rate 12 p.c. on aforesaid Rs. 9 lakhs from today i.e. the date of award till payment. In case the respondent builder fails to hand over possession of 13 flats of the owner share and 27 p.c. of the car parking space as per above direction within 15 days and also remaining one flat measuring the remaining portion of the 27 p.c. of the built up area within 15 days of the payment of Rs.9 lakhs along with interest at the rate of 12 p.c. from today with payment of the value surplus of area if the case such be in the measurement of the last (14th) flat, the owner claimant will be entitle to get damages/penalty at the rate of Rs.30,000.00 per month for the 1st 6 months and Rs.50,000.00 per month thereafter with effect of the 16th days of the above payment till the day possession is given. ii. Accordingly the award is made in favour of both the owner/claimant and the respondent builder to the extent mention below:- A. The respondent builder will make delivery of the possession of 13 flats and 27 p.c. of car parking space as per the Commissioner’s report within 15 days of today i.e. of the passing award. B. The respondent builder should also complete the incomplete portion of the boundary wall measuring 31.512 meter and should made provision for clearing the drain water from the ground chamber towards the main Municipal drain in the front side of the building within 15 days, failing which he will be liable to pay Rs.30,000.00 per month for first 6 months with effect from the 16th day (from today) and Rs.50,000.00 per month thereafter, till the above construction is complete. C. The owner claimant should pay a sum of Rs.9 lakhs (Rs.6 lakhs towards return of security amount and Rs.3 lakhs toward price of the work in deviation of the specification in construction) along with interest at the rate of 12 p.c. on the above amounting Rs.9 lakhs from today i.e. the date of award, till such payment. C. The owner claimant should pay a sum of Rs.9 lakhs (Rs.6 lakhs towards return of security amount and Rs.3 lakhs toward price of the work in deviation of the specification in construction) along with interest at the rate of 12 p.c. on the above amounting Rs.9 lakhs from today i.e. the date of award, till such payment. D. On such payment being made by the owner claimant the respondent builder should hand over possession of the remaining 14th flat measuring the balance portion of 27 p.c. of the built up area. If the measurement of the flat does not fulfil the exact 27 p.c. of the built up area the difference either more or less will be paid at the rate of Rs.525.00 per sq. feet by the concerned party before such possession. The possession of the 14th flat will be delivered by the respondent/builder within 15 days of the above payment to the owner claimant. E. In case the respondent – Builder fails to hand over possession of the 13 flats and 27 p.c. car parking space as per Commissioner report within 15 days from today as directed above the owner claimant will be entitled for damages/penalty at the rate of Rs.30,000.00 per month for the first six month from the 16th day (from today) and Rs.50,000.00 per month thereafter, till such hand over of possession. F. Similarly, if the respondent builder fails to deliver possession of the 14th flat constituting the remaining portion of 27% of the built up area (with payment of less or more area as directed above) within 15 days the owner claimant will be entitled for a sum of Rs.30,000.00 per month for the 1st 6 months w.e.f. the 16th day (from today) and Rs.50,000.00 per month thereafter, till such hand over of possession. G. As regards the cost of litigation in this arbitration proceeding the parties should bear their own legal expenses. H. The petitioner/claimant also execute the remaining power of attorney within 15 days from delivery of possession of the 13 flats by the respondents/Builders to the owner/claimant. Rest of the claims and counter claims of both the parties are dismissed/rejected.” iv. The respondents-builders being aggrieved by the award filed an application u/s 34 of the Arbitration and Conciliation Act, 1996 before the learned Sub-Judge-VI, Ranchi being Misc. Case No. 01/2005, which was dismissed vide order dated 07.09.2005. Rest of the claims and counter claims of both the parties are dismissed/rejected.” iv. The respondents-builders being aggrieved by the award filed an application u/s 34 of the Arbitration and Conciliation Act, 1996 before the learned Sub-Judge-VI, Ranchi being Misc. Case No. 01/2005, which was dismissed vide order dated 07.09.2005. v. Being aggrieved by the order dated 07.09.2005 passed in Misc. Case No. 01/2005 the respondents filed an Arbitration Appeal before the Hon'ble High Court of Jharkhand, being Arbitration Appeal No. 15 of 2005 and the same was also dismissed by this Hon’ble Court vide order dated 14.06.2007 the paragraph nos. 20 and 21 of the said order is as under: “20. As per the agreement, owner is entitled to 13 flats measuring 1470.57 sq.m. The Commissioner found that there is one more flat constructed measuring 433.60 sq. m. In the light of the above, the Arbitrator held, as both the parties have admitted that the owner's share is 14 flats, there cannot be any dispute on this point. Further, the Commissioner was again directed by the Arbitrator as the parties raised some additional questions. Thereafter the Commissioner again visited and filed supplementary report. It is not disputed that both the reports would reveal that there is some deviation in the owner's share. The Arbitrator accepted those reports as none of the parties raised any objection against the said reports. On the basis of those reports, the Arbitrator gave a finding for delivery of 27% in ground floor plus six floors along with the 27% car parking space to the owner. With reference to the 7th floor, it is specifically stated that even though there is no mention regarding construction of 7th floor, which is not the subject-matter of the agreement, it was directed to deliver 27% in the 7th floor also as admitted by the builder that the owner is entitled for 27% in the 7th floor also. In such a situation, it cannot be said that the Arbitrator passed an award beyond the scope of the agreement.” 21. As a matter of fact, the Arbitrator in his award has referred to various letters and documents produced by both the parties and considered the two reports of the Commissioner and the statements of parties along with the agreement. In such a situation, it cannot be said that the Arbitrator passed an award beyond the scope of the agreement.” 21. As a matter of fact, the Arbitrator in his award has referred to various letters and documents produced by both the parties and considered the two reports of the Commissioner and the statements of parties along with the agreement. It is specifically referred in the award that while dealing with Annexure-20, which is a letter dated 23.02.2002 written by the builder to the owner, in which the builder has himself stated that owner is entitled to 27% of the total build up area, i.e. 16038 sq.ft. which comprises of 14 flats. This thing has also been accepted by the owner in his reply, Annexure-21. It is also found by the Arbitrator that as per the Commissioner’s report, owner is entitled to 27% in the built up area, i.e. 1904.26 sq. m. in ground +6 and 1549.47 sq. m. in the 7th floor. From the report, it appeared that only 1470.57 sq.m. area in 13 flats are reserved as owner’s share. So it appears that 433.69 sq. m. is short than the actual area allotted to the owner. On this basis, the Arbitrator found that the owner is entitled to 13 flats measuring 1470.57 sq.m. plus one more flat measuring 433.69sq.m. It is specially found by the Arbitrator that since both the parties have admitted that owner's share is 14 flats, there cannot be any dispute on this point.” vi. Being aggrieved by the order dated 14.06.2005 the respondent-builder filed Special Leave Petition before the Hon'ble Supreme Court being Special Leave to Appeal (Civil) No. 11368/2007 which in turn dismissed vide order dated 23.07.2007. vii. The petitioner being entitled for the reliefs as mentioned in the award, the respondent-builder having not complied with the award passed by the learned Arbitrator, filed an Execution Case No. 3(A)/2005 in the court of Sub-Judge VI, Ranchi. viii. Even after filing of the execution case the respondent-builder had raised one objection or the others but the respondent-builder did not comply with the award. At this stage counsel for the petitioner referred two orders i.e. order dated 25.10.2008 passed in W.P.(C) No. 1818 of 2008 and order dated 03.03.2009 passed in Civil Review No. 106 of 2008 by this Court. At this stage counsel for the petitioner referred two orders i.e. order dated 25.10.2008 passed in W.P.(C) No. 1818 of 2008 and order dated 03.03.2009 passed in Civil Review No. 106 of 2008 by this Court. The said writ petition arose out of orders passed by the executing court and the civil review arose out of the order passed in the said writ petition. These two orders are a part of the instant writ petition contained in Annexure-4 and Annexure-4/1 to this writ petition. ix. Counsel for the petitioner further submits that it was clearly specified in the development agreement that in case of any difference in measurement of the area of actual construction, then such difference will have to be calculated @ 525/- per sq. ft. for which payment has to be made by either of the parties. x. Counsel for the petitioner further submits that the total construction done by the respondent-builder was 5738.78 sq. m. which is equivalent to 61,749.27 sq.ft. Thus, out of total anticipated construction of 59,400 sq.ft., an excess construction of 2349.27 sq.ft. was made by the respondent-builder. As per the agreement and even as per the award passed by the learned sole Arbitrator, the petitioner-owner is entitled for 27% of the total built up area constructed by the respondent-builder which would be 16,672.3 sq. ft. (i.e. 27% of 61,749.27 sq. ft.). As per the agreement the proposed tentative allotment of the petitioner share was 16,038 sq. ft. but as per the actual construction made, the share, for which the petitioner is entitled, became 16,672.3sq.ft. as per the agreement. xi. Counsel for the petitioner submits that out of the said 16,372.3 sq. ft. the petitioner was given 15,824.70 sq. ft. and accordingly, the petitioner was entitled for additional 849.28 sq. ft. xii. Counsel for the petitioner submits that the smallest flat available with the respondent was of 987.27 sq.ft., the petitioner was required to pay the difference of the area @ 525/- per sq. ft. as per the award. The total difference in area was 137.99 sq. ft. for which the petitioner was required to make payment of Rs. 72,450/- to the respondent. xiii. ft. as per the award. The total difference in area was 137.99 sq. ft. for which the petitioner was required to make payment of Rs. 72,450/- to the respondent. xiii. Further, the petitioner has filed an application dated 07.08.2007 before the Executing Court mentioning all the facts and had requested the learned executing court to direct the respondent (judgment-debtor) to hand over 14 flats after adjusting the difference amount of Rs. 72,450/- on account of execution under different heads of the award. xiv. As per the Award delivery of 14 flats by the respondent was upon payment of Rs. 9.00 lac by the petitioner along with interest. The said payment was made to the respondent –builder by the petitioner and this fact is not in dispute. The petitioner submits that instead of handing over the possession of 14th flat, the respondent-builder filed a demand draft of Rs. 1,11,966.75 dated 22.01.2009 in the Court below stating that as per the award the petitioner is entitled for 16,037.97 sq. ft. out of which an area of 15,824.70 sq. ft. has already been handed over to the petitioner. It was further contended by the respondent-builder that since the difference of the sq. ft. is only 213.27 sq. ft. which is less than 50% of the smallest flat, in question, the respondent-builder is liable to pay only the difference of price @Rs. 525/- per sq. ft. It was specific case of the respondent-builder that the 14th flat is not required to handover to the writ petitioner. xv. However, in such a situation the petitioner filed an application before the executing court for execution of the Award relating to handing over of the 14th flats to him and the petitioner along with petition deposited a Banker’s Cheque bearing No. 026698 drawn on Allahabad Bank, Circular Road Branch, Ranchi dated 4.3.2009 for Rs. 72,450/- in favour of the respondent-builder. xvi. The application of the petitioner was rejected by the executing court vide order dated 7.04.2010. xvii. 72,450/- in favour of the respondent-builder. xvi. The application of the petitioner was rejected by the executing court vide order dated 7.04.2010. xvii. Being aggrieved by the order dated 07.04.2010, the petitioner challenged the said order before this Court by filed a writ petition being W.P.(C) No. 2034 of 2010 which was decided by this Court vide order dated 09.04.2012 Some of the relevant portions of the said order is quoted herein below for ready reference: “I have heard counsel for the respective parties at length and gone through the records as well as the judgments. Apparently both the parties have tried to raise a factual controversy regarding measurement. The measurements were made by the Commissioner and the report was accepted by the Arbitrator. No objection were raised and the Award was passed in terms of the Commissioner’s report. The Award and its intention are liable to be given effect by the executing court. I am not inclined to examine the factual controversies in exercise of jurisdiction under Article 226 of the Constitution of India. However, the legal submissions raised on behalf of the petitioner is regarding the question that whether the execution court could go behind the Award relying upon a solitary typographical error in para 38 of the Award. Learned counsel has emphasized that the findings has to be looked into and if there is some anomalies then it had to be got rectified at the instance of the aggrieved party. I cannot loose sight of the fact that the Award was challenged by respondent-builder under Section 34 of the Act, thereafter in appeal and finally, before the Apex Court which was dismissed in the event the builder was not aggrieved by the Award and he was satisfied with the observations, then there was no occasion for him to challenge the Award. The Award has also been appended to the writ petition as Annexure-2. The Award given by an Arbitrator after examining the entire controversy cannot be turned and twisted so lightly. On bare perusal of the extract of the Award as well as the operative portion, it is stated in sub-para D of Issue No. 9 that on such payment being made by the owner claimant the respondent builder should hand over possession of the remaining 14th flat measuring the balance portion of 27 p.c. of the built up area. On bare perusal of the extract of the Award as well as the operative portion, it is stated in sub-para D of Issue No. 9 that on such payment being made by the owner claimant the respondent builder should hand over possession of the remaining 14th flat measuring the balance portion of 27 p.c. of the built up area. In the event the measurement of the flat does not fulfill the exact 27 p.c. of the built up area the difference either more or less will be paid at the rate of Rs. 525.00 per sq. ft. by the concerned party before such possession. The possession of the 14th flat will be delivered by the respondent/builder within 15 days of the above payment to the owner claimant. A mere mention in sub-clause A that the respondent-builder will make delivery of possession of 13 flats and 27 p.c. of car parking space will not render the Award redundant. The mistake occurred while mentioning the area as 16038 sq. ft. in para 38 Issue No. 9 sub-clause (i) is an error which the executing court was liable to examine. On bare reading of the entire Award, besides, Annexure-6 and 6/1, which are orders of this Court in W.P.(C) No. 1818 of 2008 dated 21.10.2008 and also in Civil Review No. 106 of 2008 dated 03.03.2009, is sufficient to substantiate the contention on behalf of the petitioner. The review application was dismissed with cost of Rs. 25,000/- payable by the respondent-builder to the petitioner by the executing court. These orders were part of the record before the executing court, but I fail to understand how all these aspects and orders and judgments were completely overlooked by the executing court. In fact, I fully agree with the observations made by this Court in the writ petition and also Review application that the respondent-builder has all along abused the process of law by raising frivolous and vexatious objections. The process of law has blatantly been abused. The petitioner has approached equity jurisdiction. This Court has also to examine and ensure equities as well as that the order and decree passed are complied with. The Award was given in the year 2004, but the petitioner who is incidentally also the owner of the property has been dragged into unnecessary litigation. The petitioner has approached equity jurisdiction. This Court has also to examine and ensure equities as well as that the order and decree passed are complied with. The Award was given in the year 2004, but the petitioner who is incidentally also the owner of the property has been dragged into unnecessary litigation. It is not the case of the respondent either before the executing court or any other court that his share is less than the allocation of share agreed upon in the initial agreement. Even if there was some discrepancy then it had to be raised and got corrected before the Arbitrator. The Commissioner’s report was also not challenged and it is only at a subsequent stage, some inadvertent error was noticed by the builder which he tried to use it as a weapon to his advantage against the petitioner to some how stall the execution of the Award. Before I part with the writ petition, I must express my concern over the lackadaisical approach of the executing court either mistakenly or it was step-in-aid to ensure that the decree is not executed. In the facts and circumstances detailed hereinabove, the writ petition is allowed. The order of the executing court is set as naught and the executing court is directed to ensure that the delivery of 14th flat, which has an excess area then other 13 flats is handed over to the petitioner within a period of two months from the date a certified copy of this order is produced before him. He has also to ensure that the calculated amount already deposited by the petitioner in lieu of the excess area is correctly calculated, but without interfering with the decision of the Arbitrator which was confirmed by the Sub-Judge under Section 34 of the Act upheld by the Hon’ble High Court in Arbitration Appeal as well as accepted and confirmed by the Apex Court. The Award is liable to be given effect to within the aforesaid stipulated period of two months and any dereliction on the part of the executing court or the respondent cannot be accepted since this Court while exercises the supervisory power under Article 227 of the Constitution. The writ petition is accordingly allowed in the terms and observations made hereinabove.” xviii. Pursuant to the order dated 09.04.2012 passed by this Court the 14th flats was delivered by the respondent-builder only on 24.05.2012. The writ petition is accordingly allowed in the terms and observations made hereinabove.” xviii. Pursuant to the order dated 09.04.2012 passed by this Court the 14th flats was delivered by the respondent-builder only on 24.05.2012. On account of delay in the delivery of the possession of the 14th flats by the respondents-builder, the petitioner filed an application before the executing court on 05.06.2012 for further execution of the award to the extent it relates to payment of penalty for delay in handing over 14th flat as per the award itself. xix. The application was filed by the petitioner was entertained by the executing court and the respondent–builder filed rejoinder to the said application stating that the penalty for delay in handing over the possession of 14th flats was not payable to the petitioner by the respondent-builder as the flats were handed over to the petitioner by virtue of the order passed by this Hon’ble Court in W.P.(C) No. 2034 of 2010 which had directed the builder to delivered the 14th flat to the writ petitioner within a period of two months and accordingly no penalty can be imposed upon the respondent–builder for delay in handing over the 14th flats. xx. The prayer for the petitioner was rejected by the Sub-Judge-VIII, Ranchi vide order dated 01.03.2014 which is the impugned order in this writ petition. xxi. It is the specific case of the petitioner that the learned Sub-Judge while rejecting the prayer of the petitioner instead of executing the award has travelled beyond the scope of the award/decree and has held that since the respondent-builder has handed over possession of the 14th flat within two months from the date of the order passed by the Hon’ble High Court and since the Hon’ble High Court had not directed the respondent–builder to deposit any fine amount, there was no liability of the respondent–builder to make payment of the amount of penalty to the petitioner. xxii. Counsel for the petitioner submits that the impugned order dated 01.03.2014 is not only perverse but the same has the effect of nullifying the award itself to the extent it relates to payment of penalty by the respondent builders. It is submitted that the learned executing court instead of awarding penalty to the petitioner as per the terms of the award has travelled beyond the award and has failed to exercise its jurisdiction in executing the award itself. It is submitted that the learned executing court instead of awarding penalty to the petitioner as per the terms of the award has travelled beyond the award and has failed to exercise its jurisdiction in executing the award itself. xxiii. Counsel for the petitioner has drawn the attention of this Court at paragraph 49 of the writ petition wherein the petitioner has given the details of the claim made by him from the respondent on account of penalty i.e. of Rs. 17,85,000/- and the said calculation has not been denied by the respondents. xxiv. Counsel for the petitioner submits that from the perusal of the counter affidavit it is apparent that there is no dispute on any of the facts. He submits that the executing court having failed to exercise its powers in connection with execution of the award. xxv. Counsel for the petitioner has relied upon the judgment passed in Navbharat Ferro Alloys Limited Vs. Transmission Corporation of Andhra Pradesh Limited and another reported in (2011) 1 SCC 216 as well as the judgment reported in (1996) 1 SCC 522. Counsel of the petitioner submits that the judgment reported in (1996) SCC 897 on the point of restitution was explained in (2011) 1 SCC 216 and submitted that principles of restitution entitles the successful party to be relegated back to the position it would hold had there been no judgment adverse to it. xxvi. He submits that the award having attained finality ought to have been implements by the executing court in letter and spirit and the said court has failed to exercise its jurisdiction. 4. However, counsel for the respondents on the other hand has opposed the writ petition and has raised preliminary issue during the course of arguments including availability of the efficacious alternative remedy and has submitted that the writ petition is not maintainable. Counsel for the respondents relied upon the following judgments on the point of alternative remedy :- a. (2008) 4 SCC 615 on the point of alternative remedy. Counsel for the respondents relied upon the following judgments on the point of alternative remedy :- a. (2008) 4 SCC 615 on the point of alternative remedy. Counsel for the respondents has submitted by referring the para 11 of the judgment reported in (2008) 4 SCC 615 that at different stages of the execution, orders passed by the executing court attains finality unless they are set-aside by way of appeal before higher forum and that the orders passed at different stages of execution itself operates as a decree and is appealable a such. Counsel for the respondents has submitted that the order passed by the executing court is itself appealable order and accordingly writ petition under Article 226 of the Constitution of India is not maintainable. b. Counsel for the respondents has also referred to the judgment reported in (2011) 2 SCC 782 wherein on the point of alternative remedy the Hon’ble Supreme Court has taken very strict view and has observed that whenever an efficacious alternative remedy is available the High Court should restrain from exercising power under Article 226/227 of the Constitution of India. Counsel for the respondents submits that earlier also writ petition was entertained by this Court against the order passed by the same executing court but the plea of alternative remedy was not taken by the respondents. However in this writ proceedings the respondents are raising the plea of non-maintainability of the writ petition on account of availability of efficacious alternative remedy of appeal available to the writ petitioner. 5. Counsel for the respondents on the merits of the case submits that there was genuine dispute regarding entitlement of 14th flats and accordingly, there is no occasion of giving any penalty to the petitioner on account of delay in handing over the 14th flat to the petitioner. The respondents had also raised the point that as the respondent-builder had an order in their favour regarding the handing over the 14th flat vide order dated 7.4.2010 passed by the executing court which remained operative till the same was set aside by this Court in W.P.(C) No. 2034 of 2010 vide order dated 09.04.2012, therefore, there is no question of making payment of the penalty on account of delay in handing over the 14th flat to the petitioner. It is submitted that the respondents cannot be penalized on account of pendency of the case before various forums. It is submitted that the respondents cannot be penalized on account of pendency of the case before various forums. Counsel for the respondents also submits that the petitioner has claimed for restitution but the petitioner has not been able to show any loss on account of the respondent-builder’s act and loss if any was required to be computed and quantified by the petitioner and in absence of such exercise by the petitioner the court below could not have awarded the penalty. Counsel for the respondents also submitted that in view of the judgment rendered by this Court earlier in the W.P.(C) No. 2034 of 2010 vide order dated 09.04.2012 where in a specific direction was passed to hand over the 14th flats to the writ petitioner within a period of two months, it appears that this Court never intended to award the penalty for alleged delay in handing over the 14th flat. In case the penalty for delay was to be paid this Court while disposing of the writ petition on 9.4.2012 would have specifically directed for payment of penalty and in absence of such direction, there is no obligation on the part of the respondent-builder to pay the penalty as claimed by the petitioner in para 14 of the writ petition. 6. Counsel for the respondents stated that the order dated 09.04.2012 passed by this Court in W.P.(C) No. 2034 of 2010 did not prescribe the penalty to be paid and specifically gave two months time to the respondents to handing over the 14th flat to the petitioner which the respondent-builder duly complied, therefore the action of the respondents is bonafide and accordingly no penalty is payable to the petitioner. 7. On the point of genuineness of dispute regarding entitlement of the 14th flat the counsel for the respondents has relied upon the judgments reported in (2014) 15 SCC 529 and AIR 1960 SC 388 to submit that the executing court may examine the pleadings to decide any ambiguity that may arise during execution process. 8. 7. On the point of genuineness of dispute regarding entitlement of the 14th flat the counsel for the respondents has relied upon the judgments reported in (2014) 15 SCC 529 and AIR 1960 SC 388 to submit that the executing court may examine the pleadings to decide any ambiguity that may arise during execution process. 8. On the point of the submission that the respondent builder cannot be penalized for the time taken to decide the issue raised by it, the counsel for the respondents has relied upon the judgments reported in (2010) 8 SCC 1 , (2012) 3 SCC 522 and (1989) 2 SCC 95 and submitted that delay caused in the proceedings was beyond their control and submitted that the 14th flat was immediately handed over to the petitioner as per the direction issued by this court in W.P.(C) NO. 2034 of 2010. 9. On the point that the petitioner having not shown any loss on account of delay in handing over the 14th flat and therefore there is no question of any order of payment of penalty as claimed by the petitioner by way of restitution, the counsel for the respondents has relied upon the judgment reported in (1994) 5 SCC 380 and (2016) 1 SCC 411 and submitted that although the executing court had the power in equity to grant restitution but in the petition dated 5.6.2012 filed by the owner there was no mention of any loss caused to him or any gain caused to the respondent builders and the simple case was payment of penalty as per the award therefore the petitioner is not entitled to any claim on account of restitution. Further as the respondent builder had filed demand draft of Rs.1,11,966.75/- along with application dated 22.1.2009 filed before the executing court being the amount payable instead of 14th flat, the respondent builder did whatever they could do to mitigate any loss to the petitioner owner, there is no question of grant of any relief to the petitioner on the ground of restitution. 10. After considering the arguments advanced by the counsel for the parties, this Court deems is proper to first deal with the point of maintainability of the writ petition itself on account of objection having been raised by the respondents. 11. 10. After considering the arguments advanced by the counsel for the parties, this Court deems is proper to first deal with the point of maintainability of the writ petition itself on account of objection having been raised by the respondents. 11. In this context, it would be useful to refer the judgment passed by Hon’ble the Supreme Court reported in (2015) 1 SCC 379 wherein the Hon’ble Supreme Court has observed that if the executing court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. The Hon’ble Supreme court held that in such circumstances jurisdiction of the High Court under Article 227 of the Constitution can be invoked. Para 26, 27 and 28 of the said judgment is quoted herein below :- “26. The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing court. Order 21 Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The appellants had invoked the jurisdiction of the High Court under Article 227 of the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. The appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai v. Ram Chander Rai. 27. Whether the executing court, in the obtaining circumstances, has correctly expressed the view that it has become functus officio or not and thereby it has jurisdiction or not, fundamentally pertains to rectification of a jurisdictional error. It is so as there has been no adjudication. If a subordinate court exercises its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order under Section 115 of the Code is revisable as has been held in Joy Chand Lal Babu v. Kamalaksha Chaudhury. The same principle has been reiterated in Keshardeo Chamria v. Radha Kissen Chamria and Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi. Needless to emphasise, the said principle is well settled. After the amendment of Section 115 CPC w.e.f. 1-7-2002, the said power is exercised under Article 227 of the Constitution as per the principle laid down in Surya Dev Rai. Had the executing court apart from expressing the view that it had become functus officio had adjudicated the issues on merits, the question would have been different, for in that event there would have been an adjudication. 28. In view of the forgoing analysis, we conclude and hold that the High Court has fallen into error by opining that the decision rendered by the executing court is a decree and, therefore, an appeal should have been filed, and resultantly allow the appeal and set aside the impugned order. The High Court shall decide the matter as necessary under Article 227 of the Constitution of India. As a long span of time has expired we would request the High Court to dispose of the matter within a period of three months. The High Court shall decide the matter as necessary under Article 227 of the Constitution of India. As a long span of time has expired we would request the High Court to dispose of the matter within a period of three months. There shall be no order as to costs.” 12. From the perusal of the impugned order it appears that the executing court while passing the impugned order has refused to apply its mind on the point of payment of penalty as per the award itself which was under execution and as claimed by the petitioner on account of delay in handing over the 14th flat on the ground that the 14th flat which was handed over by the respondents to the petitioner only after the order dated 9.4.2012 passed by this court in writ jurisdiction being W.P.(C) No. 2034 of 2010. Thereby the executing court has failed to exercise its jurisdiction in implementing the Award itself . The portion of the order of the executing after recording the submissions of both the parties is quoted herein below for ready reference:- “From perusal of the order sheet dated 07.04.2010 it transpires that the decree holder’s petition for relating to execution of 14th flat as a part of decree/award is disposed of and the petition of the decree/holder is rejected, then the decree holder filed W.P. (C) No. 2034 of 2010 before the Hon’ble High Court of Jharkhand, Ranchi by which the Hon’ble High Court directed to the judgment debtor on 9.4.2012 to deliver the 14th flat which has an excess area within two months. Then as per order on 24.5.2012 judgment debtor handed over the 14th flat to the decree holder within a period which is given to the judgment debtor by the Hon’ble High Court of Jharkhand, Ranchi in W.P.(C). No. 2034/2010. Since the decree holder has handed over 14th flat to the decree holder within the period prescribed by the Hon’ble High Court of Jharkhand at Ranch in W.P.(C). No. 2034/2010 vide order dated 9.4.2012 and the Hon’ble High Court has not directed to deposit any fine amount. Therefore, in the above facts and circumstances and in the interest of justice, I find no merit in the petition of the decree holder dated 5.6.2012, hence it is rejected. Record is put up on 7.3.2014 for further proceeding.” 13. No. 2034/2010 vide order dated 9.4.2012 and the Hon’ble High Court has not directed to deposit any fine amount. Therefore, in the above facts and circumstances and in the interest of justice, I find no merit in the petition of the decree holder dated 5.6.2012, hence it is rejected. Record is put up on 7.3.2014 for further proceeding.” 13. Therefore, this court finds this case to be a fit case for exercise of power under Article 227 of the Constitution of India and accordingly the plea of non-maintainability of the writ petition on account of efficacious alternative remedy of appeal against the impugned order is hereby rejected. Accordingly this court further finds that the judgments reported in (2008) 4 SCC 615 and (2011) 2 SCC 782 relied upon by the respondents on the point of alternative remedy do not apply to the facts and circumstances of this case. The learned court below in the impugned order has failed to exercise its jurisdiction to implement the award. Further it appears that vide order dated 09.04.2012 passed in W.P.C. No. 2034 of 2010 there was a clear mandate and direction issued to the learned court below to execute the award. The operative portion of the said order dated 9.4.2012 is quoted herein below for ready reference :- “Before I part with the writ petition, I must express my concern over the lackadaisical approach of the executing court either mistakenly or it was step-in-aid to ensure that the decree is not executed. In the facts and circumstances detailed hereinabove, the writ petition is allowed. The order of the executing court is set at naught and the executing court is directed to ensure that the delivery of 14th flat, which has an excess area, then other 13 flats is handed over to the petitioner within a period two of months from the date a certified copy of this order is produced before him. He has also to ensure that the calculated amount already deposited by the petitioner in lieu of the excess area is correctly calculated, but without interfering with the decision of the Arbitrator which was confirmed by the Sub-Judge under Section 34 of the Act upheld by the Hon’ble High Court in Arbitration Appeal as well as accepted and confirmed by the Apex Court. The Award is liable to be given effect to within the aforesaid stipulated period of two months and any dereliction on the part of the executing court or the respondent cannot be accepted since this Court while exercising jurisdiction under Article 226 of the Constitution of India also exercises the supervisory power under Article 227 of the Constitution. The writ petition is accordingly allowed in the terms and observations made hereinabove.” 14. So far as the contention of the respondents that there was genuine dispute regarding entitlement of 14th flats is also fit to be rejected on account of specific findings in the judgment dated 14.06.2007 passed by this court while upholding the award involved in this case in Arbitration Appeal No. 15 of 2005, that there cannot be any dispute that owner’s share is 14 flats. Some of the relevant extract of the said judgment has already been quoted above. 15. Further it appears that vide order dated 09.04.2012 passed in W.P.C. No. 2034 of 2010 there was a clear mandate and direction issued to the learned court below to execute the award. It also appears from the said order dated 9.4.2012 that judicial notice has been taken of the findings recorded in the earlier writ petition being order dated 21.10.2008 passed in W.P.(C) No. 1818 of 2008 read with order dated 3.3.2009 passed in Civil Review No. 106 of 2008 that the process of law has been blatantly abused by the builder and the same has and the same has reiterated again in the said order dated 9.4.2012. 16. As this court finds that there was no dispute much less genuine dispute regarding entitlement of the 14th flat, the contention of the respondents regarding genuine dispute is rejected and accordingly the judgments relied upon by the respondents reported in (2014)15 SCC 529 and AIR 1960 SC 388 has no applicability to the facts and circumstances of this case. 17. This court finds that from the plain reading of the award and also the judgment passed by this Court in Arbitration Appeal No. 15/2005 it has been specifically recorded that the claim of 14th flat of the writ petitioner could not have been disputed . This court does not find any ambiguity in the award. The award has been upheld and it is required to be implemented in totality. This court does not find any ambiguity in the award. The award has been upheld and it is required to be implemented in totality. The arguments of the respondents that order passed by this Court in W.P.(C) No. 2034 of 2010 directing the builder to hand over the 14th flat within two months amounts to modifying the award itself cannot be accepted as the award which has been upheld till Hon’ble the Supreme court neither can be nor has been modified while passing the order in W.P.(C) No. 2034 of 2010. Rather there is a clear mandate in the order passed in W.P.(C) No. 2034 of 2010 to implement the award. 18. The next point to be considered is the plea of the respondents that the respondents should not suffer on account of the act of the court in as much as writ petition itself was kept pending by this court after the order dated 07.04.2010 which was impugned in W.P.(C) No. 2034 of 2010 but was decided on 9.4.2012. The principle of law that an act of court cannot prejudice anyone, based on the latin maxim “actus curie neminem gravabit” is well settled and is also a part of concept of restitution. In this connection the respondents have referred to the judgment passed by the Hon’ble Supreme Court in the State of Gujarat and Ors. Vs. Essar Oil Limited and Another reported in (2012) 3 SCC 522 . The Hon’ble Supreme Court at para 76 has clearly taken note of the principle by quoting para 27 and 28 of the judgment reported in (2003) 8 SCC 648 wherein it has been held that the factors attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party. In the said judgment the Hon’ble Supreme court vide para 78 held in the facts of the said case that the principles as laid down in (2003) 8 SCC 392 did not apply. In the said judgment the Hon’ble Supreme court vide para 78 held in the facts of the said case that the principles as laid down in (2003) 8 SCC 392 did not apply. In the judgment reported in (2010) 9 SCC 437 it has been held that no litigant can derive benefit from mere pendency of a case in any court of law. The very fact that in the instant case, as per findings recorded above , there was no genuine dispute regarding entitlement of 14th flat by the petitioner , the respondent cannot take any advantage of the pendency of the case before this Hon’ble court in the said writ petition. The Judgments relied upon by the respondents reported in (2012) 3 SCC 522 , (1994) 5 SCC 380 and (2016) 1 SCC 411 do not help the respondents in any manner. Moreover the matter regarding payment of penalty emerges out of the award itself where the manner of computation of penalty has been clearly provided on account of delay in handing over the 14th flat and the award itself has to be implemented in totality which has attained finality till Hon’ble the Supreme Court. Considering the facts and circumstances of this case, I find that the respondents herein has tried to raise the dispute out of no dispute and had tried to delay the implementation of the award itself. 19. Another point which has been raised by the respondents is that the petitioner is not able to show quantum of any damage suffered and accordingly the principle of restitution would not apply in favour of the petitioner unless the damages are quantified. This point is also fit to be rejected. From the perusal of the record, I find that the penalty which was to be paid to the petitioner is mentioned in the award itself and the executing court ought to have implement the award. 20. Thus this court finds that executing court while passing impugned order has failed to exercise its jurisdiction in implementing the award and accordingly the impugned order dated 1.3.2014 passed by Sub-Judge VIII, Ranchi in Execution Case No. 03(A)/2005 is hereby set-side and this court directs the executing court to implement the award in totality and take fresh decision on the petition filed by the petitioner within a period of one month from the date of receipt of a copy of this order. 21. This writ petition is thus allowed with aforesaid directions.