JUDGMENT : 1. This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 10.05.2016 passed in Execution Case No.92 of 2002 by Sub Judge-I, Hazaribag has been assailed by which the petition filed on 29.04.2016 by Judgment Debtor Nos.2, 5 and 6, the petitioners herein under Section 47 of the Code of Civil Procedure has been rejected. 2. The brief facts of the case as per the pleading made by the writ petitioners that the petitioners-Ranchi Industrial Area Development Authority (RIADA) against whom the suit was preferred by one Hari Lal being Title Suit No.49 of 2000 in the Court of Sub Judge, Hazaribag, inter alia, for the following reliefs: “(A) The Learned Court be pleased to appoint an Arbitrator regarding the subject matter in dispute and refer the matter in dispute for Arbitration after calling upon the defendants to file the original Agreement and claim book along with measurement Book for correct and just decision of the suit. (B) Interim relief may be granted in respect of admitted dues under the provision of the Act and law for Rs.6,23,841 and the defendants be restrained from making any payment to any other person/Contractors from the fund available till the payment of the claim amount to the plaintiff, with upto date interest including all other payable amounts etc. (C) Cost of the suit and interest alongwith compensation against losses be awarded to the plaintiff against the defendant, in the light of the statements of accounts in detail in Schedule ‘A’ attached herewith. (D) Any other relief which this learned court may deem fit and proper in the facts and circumstances of the case be awarded to the plaintiff.” 3. The plaintiff has filed the aforesaid suit on the basis of the background that he was allotted the work of construction of road, culvert and drains in the area of Hazaribagh Industrial Area Development Authority under RIADA, Ranchi for which an agreement was executed between the plaintiff and the defendant no.3, Executive Engineer, RIADA, Ranchi vide Agreement No.166F2 of 1984-85 and completed the work finally on 30.11.1988 but the claim of the plaintiff amounting to Rs.6,23,841/- has not been paid. The trial court vide dated 29.09.2000 appointed one Shri R.D. Narayan, Retd. Superintending Engineer, PWD as arbitrator. The trial court vide dated 29.09.2000 appointed one Shri R.D. Narayan, Retd. Superintending Engineer, PWD as arbitrator. The aforesaid order was challenged before this Court under its revisional jurisdiction as per the provision of Section 115 of the Code of Civil Procedure being Civil Revision No.45 of 2001, this Court has appointed one Munir Ahmad, Retd. Superintending Engineer, PWD Ranchi as arbitrator in place of Sri R.D. Narayan, Retd. Superintending Engineer, PWD Ranchi. The said Munir Ahmad, Retd. Executive Engineer showed his inability to act as an arbitrator and thereafter the Sub Judge-I, Hazaribagh vide order dated 23.03.2002 has appointed one Sri Jai Nath Ram, Retd. Superintending Engineer, PWD Ranchi as an arbitrator, who vide award dated 29.08.2002 has passed order in favour of the contractor by way of ex parte award therein for payment of Rs.3,10,442.36 along with simple interest @ 12% per annum with effect from 25.05.1987 till date of final payment by defendants/respondents. The said award has been made as the rule of the Court vide order dated 19.12.2008. The original plaintiff has filed execution case being Execution Case No.92 of 2002 in the court of Sub Judge-I, Hazaribagh on 24.12.2002, however, during pendency of the execution case the plaintiff namely Hari Lal died on 25.05.2011 and therefore, he was substituted through his legal heir vide order dated 01.12.2014. The executing court has proceeded after calling upon the petitioner/defendants and ultimately the executing court has passed an order with warrant of attachment with a direction upon the office to submit report of warrant of attachment and it is only thereafter the defendants appeared and filed show cause. The petitioner thereafter has filed a petition under Section 47 of the Code of Civil Procedure raising the objection by filing a petition on 29.04.2016 but the same has been rejected vide order dated 10.05.2016 against which the present writ petition has been filed. 4. Mr. The petitioner thereafter has filed a petition under Section 47 of the Code of Civil Procedure raising the objection by filing a petition on 29.04.2016 but the same has been rejected vide order dated 10.05.2016 against which the present writ petition has been filed. 4. Mr. Sudhir Kumar Sharma, learned counsel for the petitioner has raised several issues in assailing the aforesaid order to the effect that the trial court in proceeding with the title suit has committed gross illegality in view of the enactment of the new Act i.e. the Arbitration and Conciliation Act, 1996 whereby and whereunder the provision has been made under sub section 6 of Section 11 to the Act, 1996 which provides that in case of any dispute in appointing the arbitrator, an appropriate application is to be filed before Hon’ble the Chief Justice of the concerned High Court for appointment of arbitrator, subject to the condition of arbitration clause in the agreement, and as such the plaintiff to the suit ought to have make an application before the Hon’ble the Chief Justice for initiation of an arbitration application under the provision of Section 11 (6) of the Act, 1996 and only upon the order passed by Hon’ble the Chief Justice of this Court, the arbitrator ought to have appointed, but this statutory provision has been given go by and the Sub Judge, Hazaribagh while entertaining the title suit has appointed an arbitrator, therefore, the very initiation of the arbitration proceeding is not sustainable and accordingly the entire proceeding is vitiated in the eye of law. He has agitated the ground, if the inception would be wrong the subsequent action would also be said to be illegal and not sustainable. He has further submitted that the petition under Section 47 of the CPC has been filed before the executing court raising this issue but it has not been considered, therefore the order impugned is not sustainable. 5. Mr. He has further submitted that the petition under Section 47 of the CPC has been filed before the executing court raising this issue but it has not been considered, therefore the order impugned is not sustainable. 5. Mr. Amar Kumar Sinha, learned counsel appearing for the respondents has submitted that the question of jurisdiction which has been agitated by the petitioner that the power vests upon the Hon’ble the Chief Justice of this Court in appointing an arbitrator in terms of the Arbitration Clause no more can be allowed to be agitated for the reason that when the Sub Judge, Hazaribag has passed an order in Title Suit No.49 of 2000, appointing one R.D. Narayan, the Retd. Superintending Engineer, PWD Ranchi and the same was assailed by filing the revision before this Court and raised the objection about the appointment of said R.D. Narayan, the Retd. Superintending Engineer. The revisional court by passing an order in Civil Revision No.45 of 2001 has replaced Sri R.D. Narayan not to act as an arbitrator, appointing one Sri Munir Ahmad and since he has shown his inability to act as arbitrator through an application made before the trial court, in this regard one Sri Jai Nath Ram has been appointed as sole arbitrator and therefore, the petitioner since has approached before the revisional Court in exercise of power conferred under Section 115 of the Code of Civil Procedure, hence so far as appointment of arbitrator is concerned he cannot be allowed to agitate on this ground. So far as jurisdictional error alleged to have been committed by Sub Judge, Hazaribagh, the same also cannot be allowed to be agitated for the reason that when the petitioners have accepted the order by which Sri R.D. Narayan, Retd. So far as jurisdictional error alleged to have been committed by Sub Judge, Hazaribagh, the same also cannot be allowed to be agitated for the reason that when the petitioners have accepted the order by which Sri R.D. Narayan, Retd. Superintending Engineer, PWD Ranchi has been appointed vide order dated 29.09.2000 and the modification by which one Sri R.D. Narayan who has been appointed by virtue of the aforesaid order by the trial court to act as arbitrator having been replaced by Sri Munir Ahmad and subsequent thereto on his refusal one Sri Jai Nath Ram has been appointed as sole arbitrator but no such ground has been agitated by the petitioners raising the jurisdiction of the trial court and hence it is settled position of law that the ground which is available but not raised, cannot be allowed to be agitated subsequently the same being the position of law of constructive res judicata. Further, ground has been agitated that the petitioner has submitted to the jurisdiction of the sole arbitrator and contested the case at length and once he has submitted to the jurisdiction and when any order has been passed by an award, however, during arbitration proceeding he has chosen not to appear, therefore, it is not a case that it was not within his knowledge about the aforesaid arbitration proceeding and hence when the award has been passed he cannot agitate the ground of jurisdictional error that too when the execution proceeding has been initiated by filing an objection under Section 47 of the Code of Civil Procedure there in. 6. This Court having heard learned counsel for the parties and on appreciation of the rival submissions has found certain undisputed facts that the respondents have been allotted with a work for its execution under the petitioner (establishment) by virtue of a statutory agreement who on execution and performance of the entire work has submitted his bill but not paid which prompted the respondent to approach before the competent court of civil jurisdiction for seeking therein relief for direction for disbursement of the amount claimed in lieu of the work performed. The competent court of civil jurisdiction has proceeded with a suit and on contest one R.D. Narayan, the Retd. Superintending Engineer, PWD, Ranchi has been appointed as arbitrator. The competent court of civil jurisdiction has proceeded with a suit and on contest one R.D. Narayan, the Retd. Superintending Engineer, PWD, Ranchi has been appointed as arbitrator. The order passed by the trial court has been assailed by the petitioner before this Court under its revisional jurisdiction but this Court has refused to interfere with the order passed by trial court on merit, however, the arbitrator has been replace by one Sri Munir Ahmad, the Executive Engineer who however has refused to arbitrate, in consequence thereof one Jai Nath Ram has been appointed as arbitrator by the trial court vide order dated 29.08.2002. The petitioner although has not participated in the proceeding before the sole arbitrator, Sri Jai Nath Ram, but the arbitration proceeding proceeded and culminated into an award with a direction for payment of amount along with interest. The said award having not been complied with, prompted the respondent to file execution case before the competent court which was registered as Execution Case No.92 of 2002. Initially the petitioner has not put his appearance but subsequently when coercive order has been passed, the appearance has been made and show cause has been filed. Execution case has proceeded and in course thereof a petition dated 29.04.2016 has been filed invoking the jurisdiction conferred under Section 47 of the Code of Civil Procedure. The executing court has declined to interfere holding therein that scope of Section 47 is so narrow that it can only be exercised for very rare of rarest case. The said order is under challenge. 7. This Court in order to examine the illegality and propriety of the aforesaid order, deem it fit and proper to refer Section 47 of the Code of Civil Procedure which reads as: “47. Questions to be determined by the Court executing decree.- (1) All question arising between the parties to the suit in which the 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. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. It is evident from provision of Section 47 of the Code of Civil Procedure that the executing court has been allowed to exercise power for not executing the award, if any cause is being shown about for not executing the decree passed by the competent court of civil jurisdiction to the effect that if the decree would be said to be nullity. The question of interference under Section 47 of the Code of Civil Procedure fell for consideration before the Hon’ble Apex Court in catena of judgment, reference in this regard may be made in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors. reported in (1970) 1 SCC 670 in essence enunciated that only a decree which is nullity can be subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision needs to be referred herein: “6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative 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. 7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative 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 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 could 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 the case of Brakewel Automotive Components (India) (P) Ltd. vs. P.R. Selvam Alagappan reported in (2017) 5 SCC 371 wherein their Lordships of the Hon’ble Apex Court while dealing with Section 47 of the CPC have laid down the proposition at paragraph 21 and 22 which is referred hereinabove: “21. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof. 22. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman in essence enunciated that only a decree which is a nullity can be the subject-matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: (SCC pp. 672-73, paras 6-7) “6. The following extract from this decision seems apt: (SCC pp. 672-73, paras 6-7) “6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative 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 could 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.” It is thus evident from the judgment referred hereinabove that the purview of scrutiny under Section 47 of the Code qua a decree is limited but objections to its executability on the ground of essential infirmity or voidness and plethoric. The Court executing a decree cannot go behind the decree until it is set aside in an appropriate proceeding in appeal or revision, a decree even if it be decree or erroneous is still binding upon the parties. However, a decree is nullity when it is passed without bringing the legal representatives on the record of a person who was dead at the date of 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. However, a decree is nullity when it is passed without bringing the legal representatives on the record of a person who was dead at the date of 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 to its validity may be in an execution proceeding if an objection appears on the face of record where the objection is as to whether the jurisdiction of the Court to pass a decree does not appear on the face of record and requires examination of the questions raised and decided at the trial for which could have been but having 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. The Hon’ble Apex Court in another case of Dhurandhar Prasad Singh vs. Jai Prakash University and Ors. reported in (2001) 6 SCC 534 laid down therein that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that the executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. Recently also the Hon’ble Apex Court in the case of Sneh Lata Goel vs. Pushplata and Ors. reported in (2019) 3 SCC 594 wherein also reliance has been placed upon the judgment of the Hon’ble Apex Court in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors. reported in (1970) 1 SCC 670 by discussing the scope of Section 47. reported in (2019) 3 SCC 594 wherein also reliance has been placed upon the judgment of the Hon’ble Apex Court in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors. reported in (1970) 1 SCC 670 by discussing the scope of Section 47. The Hon’ble Apex Court has been pleased to hold that the court executing a decree cannot go behind the decree between the parties or their representatives, it must take the decree according to its tenor and cannot entertain any petition that the decree was not correct in law or on facts until it set aside by appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties, reference of paragraph 23 thereof needs to be made which reads as under: “23. The objection which was raised in execution in the present case did not relate to the subject-matter of the suit. It was an objection to territorial jurisdiction which does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. An executing court cannot go behind the decree and must execute the decree as it stands. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors., the petitioner filed a suit in the Court of Small Causes, Ahmedabad for ejecting the defendant tenant. The suit was eventually decreed in his favour by this Court. During execution proceedings, the defendant tenant raised an objection that the Court of Small Causes had no jurisdiction to entertain the suit and its decree was a nullity. The court executing the decree and the Court of Small Causes rejected the contention. The High Court reversed the order of the Court of Small Causes and dismissed the petition for execution. On appeal to this Court, a three-Judge Bench of this Court, reversed the judgment of the High Court and held thus: (SCC pp.672-73, paras 6 & 8) “6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 8. ….. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 8. ….. if the decree is on the fact of the record without jurisdiction and the question does not relate to the territorial jurisdiction or under Section 11 of the Suits Valuation Act, objection to the jurisdiction of the court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding.” 8. In the backdrop of this legal position, the ground which has been agitated by the petitioner and respondent has been examined by this Court. So far as submission advance by Mr. Sharma, learned counsel for the petitioner, that after coming into the effect of Arbitration and Conciliation Act, 1996 the civil court should not have proceeded by appointing an arbitrator and hence there is jurisdictional error but the question herein is that a motion has been made by the respondent by filing a suit before competent court of civil jurisdiction in which the petitioner has put his appearance and contest the suit and in his appearance effective order has been passed and not being satisfied the petitioner approached before the revisional court by invoking Section 115 of the C.P.C wherein the revisional court (this Court) has declined to interefere with the merit of the issues but however, the arbitrator who has been appointed by the order of the trial court has been directed to be replaced through one Munir Ahmad and since he refused to arbitrate by an application made before the trial court, another person has been appointed as arbitrator namely Jai Nath Ram, Retd. Superintending Engineer, who has passed the award hence the question of jurisdiction was available to the petitioner but having not agitated the same rather accepted the order to that effect and as such at this stage i.e. at the stage of execution, he cannot be allowed to agitate the issue, if it would be allowed to agitate, it will nothing but against the principle of constructive-res judicata on the basis of the fact that the said ground even though available to the petitioner but not agitated cannot be allowed to agitate subsequent thereof otherwise it will lead to unsettle the settled law and it would be nothing but unending process. So far as contention of the learned counsel for the petitioner that the jurisdiction error can be considered even under Section 47 of the Code of Civil Procedure, this argument is not acceptable for the reason of object and scope of Section 47 of the CPC which provides that if it is applicable is only in a case when it is applicable the decree will be said to be nullity in the eye of law, the executing court can exercise the power in not executing the award but no such ground has been made in the case. Further on the basis of judicial pronouncement as referred hereinabove, dealt with the scope of Section 47 of the CPC, this Court is of the view that the executing court the limited jurisdiction in not executing the decree or award rather it is incumbent upon the executing court to execute the decree in its original shape without making any deviation from it unless precluded by higher forum as has been laid down in the case of Meenakshi Saxena and Anr. vs. ECGC Limited and Anr. (2018) 7 SCC 479 where in Executing court while executing the decree is only concerned with execution part of it, but nothing else-court has to take the judgments in its face value- executing court cannot go beyond the decree-when there is ambiguity in the decree with regard to material aspect, then it becomes bounden duty of the Court to interpret the decree in the process of giving a true effect. 9. 9. In that view of the matter this Court is of the view that this case is not such nature of case, warranting interference by this Court in its revisional power conferred under Article 227 of the Constitution of India. Accordingly, the writ petition fails and is dismissed.