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2024 DIGILAW 1089 (ALL)

Vandana Gupta v. State of Uttar Pradesh

2024-04-22

AJIT KUMAR

body2024
JUDGMENT : Hon'ble Ajit Kumar, J. 1. Heard Sri Sanjeev Kumar Yadav, learned counsel for the petitioners and Sri Sanjay Kumar Singh, learned Additional Chief Standing Counsel for the State-respondents. 2. The petitioner before this Court is a decree holder and is aggrieved by the order passed in Civil Revision No.93 of 2017 by the District Judge, Azamgarh dated 23.11.2017 whereby the order passed by the Executing Court rejecting Section 47 objection has been reversed and matter has been remitted to the limited extent of deciding the question of interest on delayed payment under the Small Scale and Ancillary Industrial Undertakings Act, 1993 (in short, 'the Act of 1993'). 3. The argument advanced by learned counsel for the petitioner is that although it is an order of remand but in matter of satisfaction of decree passed by the trial court, the Executing Court could not have gone behind the decree and once the decree for interest has been passed and that has remained unappealed against, the executing court was bound to execute the decree. He, therefore, submits that the court sitting in appeal has fell in serious of error of law in allowing the revision petition. 4. Per contra, Sri Sanjay Singh, learned Additional Chief Standing Counsel has defended the order passed by the District Judge and submits that in the first instance it is mere an order of remand and petitioner shall have ample opportunity to defend his case for the execution of the decree before the executing court while the executing court proceeds to decide Section 47 objection on the question of payment of interest to the petitioner under the 1993 Act afresh. However, he further submits that the Act of 1993 being prospective in nature and any liability accrued in respect of any agreement reached prior to the Act of 1993 coming into force, no interest could have been levied under the Act of 1993. In this regard, he has placed reliance upon judgment of the Supreme Court in the case of Urban Improvement Trust, Jodhpur v. Gokul Narain (dead) By LRS. & anr; (1996) 4 SCC 178 . He submits that this very question has been answered regarding liability to pay interest under the new Act in respect of old contracts under which the liability to pay contract money had accrued. 5. & anr; (1996) 4 SCC 178 . He submits that this very question has been answered regarding liability to pay interest under the new Act in respect of old contracts under which the liability to pay contract money had accrued. 5. Meeting the argument advanced by learned counsel for respondent regarding scope of interference by the executing court in execution of the decree, counsel for the petitioner has relied upon a judgment of Supreme Court in the case of Shanti Conductors Private Limited & anr v. Assam State Electricity Board & ors; (2019) 19 SCC 529 wherein the Court very categorically held that in the event decree was found to be nullity which may include passing of a decree under wrong provision of law, it would be a question to be gone into under Section 47 of the Civil Procedure Code. 6. Having heard learned counsel for the respective parties and having perused the order passed by District Judge, I find that the order is of remand. The question of payment of interest under the Act of 1993 has been directed to be decided afresh. In the circumstances, it will be open for the parties before execution court to put up their arguments in defence of their stand. 7. In the circumstances, therefore, I do not see any justification to interfere with the order passed by the District Judge. However, since the decree is in respect of interest to be paid upon liability of contract entered prior to 1990 and the suit was of the year 1990, it would be appropriate that the executing court disposes of the matter afresh under the remand order dated 23.11.2017 within maximum period of two months of presentation of certified copy of this order after giving full opportunity of hearing to the respective parties. 8. The question of payment of interest will be decided in light of observations that have been made by the District Judge, Azamgarh, however, keeping it open for the parties to argue if otherwise also the interest can be given for such delayed payment upon the contract money and to this extent decree will be taken to be executable in law. 9. With the aforesaid observations and directions, this petition stands disposed of.