WESTERN COALFIELDS L... v. M/S. K. SUBBA RAO, T...

3. The petition arises from the Arbitration Award under the Arbitration Act, 1940. On 28.12.1999, the Arbitration passed an Award in favour of the respondent/Decree Holder directing the Judgment Debtor to pay an amount of Rs. 2,56,480/-. In terms of Section 14 of the Arbitration Act, 1940, the respondent/Decree Holder on 21.01.2000 applied to pass a Decree in terms of an Award which came to be registered as Special Civil Suit No.382/2000. On 29.10.2007, the Trial Court confirmed the Award by passing Decree in terms of the Award. The text of the said order is as under :-

"That vide order below Exh.20 I have rejected the claims of Petitioner and counter claim of Respondent. Hence, I hereby hold that the award passed by Arbitrator is tenable. That award of Rs.2,56,480.36 is passed in favour of claimant. Hence, he do pay requisite court fees on that amount and decree be passed in terms of this award. Decree be drawn up after depositing requisite court fee by the claimant."

4. The Decree Holder on 26.03.2010 filed an application below Exh.22 seeking permission to deposit a Court Fee of Rs.13,600/- for drawing a Decree. By order dated 12.04.2010, the Trial Court permitted the Decree Holder to pay the Court Fee of Rs.9,630/- without issuing notice to the petitioners.

5. According to the petitioners, the date of the Decree ought to have been after 12.04.2010 and not prior to that. According to him, the

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date of the Decree is 29.10.2007, which takes away the substantive right of the petitioners to file a statutory appeal against the Decree. The petitioners, therefore, objected to Section 47 of the Code of Civil Procedure before the Executing Court that by drawing Decree bearing date 29.10.2007, after the deposit of the Court Fee by Decree Holder makes the Decree nullity and therefore, the Executing Court cannot execute the Decree as its stand. The Trial Court, by order dated 12.03.2018, rejected the objection by holding that the opportunity to challenge the Decree was available to the Judgment Debtor as the Judgment Debtor was well aware of the Award.

6. The learned Advocate for the petitioners submitted that the vested rights accrued in favour of the petitioner of filing an appeal are taken away by drawing a Decree bearing date 29.10.2007, particularly as per conditional Decree, the Court Fee was paid on 12.03.2010. According to him, therefore, the right to file an appeal would be taken away as this eventuality is not covered under Section 12(3) of the Limitation Act, 1963. The apprehension raised by the petitioners can be taken care of by clarifying that in case the petitioners file an appeal against the Decree, the period from 29.10.2007 till 12.04.2010 shall be considered sympathetically by the Appellate Court in view of the nature of conditional Decree passed on 29.10.2007. The petitioners are right in submitting that

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the Decree could not have become enforceable until the Judgment Debtor's payment of Court Fees. The Court Fees were paid only on 12.04.2010. With the result, the right to challenge the Decree accrued in favour of the petitioners only after the payment of the Decree, i.e. on 12.04.2010. All these factors must be considered by the Appellate Court in case an appeal is filed along with the application for condonation of delay.

7. However, the scope of power of Executing Court under Section 47 of the Code of Civil Procedure is no longer res Integra in view of the judgment of the Hon'ble Apex Court in the case of Dhurandhar Prasad Singh vs. Jai Prakash University And Ors. reported in (2001) 6 SCC

534. The Hon'ble Apex Court, in paragraph 24, has held that the powers under Section 47 of the Civil Procedure Code are microscopic and lie in a narrow inspection hole. However, 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 nullity, apart from the ground that the decree is not capable of execution under the 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. In the facts of the present case, merely because the Decree bears the wrong date affecting the rights of the petitioners to challenge the same would not

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render the Decree either void or nullity or inexecutable. Therefore, in my opinion, the Executing Court was justified in rejecting the application under Section 47 of the Code of Civil Procedure. There is no error of jurisdiction nor miscarriage of justice brought to the notice of the Court.

8. The petition is, therefore, dismissed.

9. Since there was ad interim relief running in favour of the petitioners for the last four years, the same is continued for four weeks.

(AMIT B. BORKAR, J.)

RGurnule

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