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Judgment
Rajesh Tandon, J.—Heard Sri A.K. Joshi, counsel for the revisionist and Sri Alok Singh, assisted by Sri D. Barthwal, counsel for the respondents.
By the present civil revision filed u/s 115 of the Code of Civil Procedure, the revisionist has prayed for setting aside the order dated 7.5.2002 passed by the District and Sessions Judge, Haridwar in Execution Case No. 3 of 1999 Integrated Capital Services Ltd. v. Sri Ganesh Investment Company by which the application 42-Ga has been disposed of.
Briefly stated, in pursuance of the arbitration award, following order was passed on 8th October, 1997:
Having considered the matter in dispute and after taking into consideration all the documents and material placed before me and the oral submissions made by the Applicant, I, the sole arbitrator award, as follows:
i) The Respondent shall pay to the Applicant as sum of Rs. 3,93,003.20 (inclusive of interest) within 30 days from the date of the Award.
ii) This applicant shall bear expenses of traveling and other incidental expenses, if any incurred in connection with this arbitration case.
iii) The arbitration fees incurred for this matter shall be borne by the Respondent However, since the Arbitration fees has not been paid by the Respondent the same shall be paid by the Applicant and can be recovered from the Respondent.
I authorize the National Stock Exchange of India Ltd. to send this award to both the parties.
The award was sought to be executed by the decree-holder in Execution Case No. 3 of 1999 M/s Integrated Capital Services Ltd. v. Sri Ganesh Investment Company where the decree holder has impleaded the partners namely Anuj Mangal and Ganesh Gaurav Mittal as respondents No. 2 and 3. The award was to the extent of Rs. 3,93,000/-.
During the process of the execution, an application was filed on behalf of Sri Anuj Mangal that the notices may also be issued on Sri Gaurav Mittal, who has been arrayed as opposite party No. 3. The decree-holder in reply to the said application has submitted that the registered notices have already been sent to the opposite party No. 3 namely Sri Gaurav Mittal, but he has not appeared in the Court.
A perusal of the record shows that the Presiding Officer has observed that the registered notice was sent and served upon Sri Sri Gaurav Mittal by refusal and as such there is no reason to send the notice again. The application was rejected.
Since the application 42-Ga has been rejected on the ground that Gaurav Mittal has already been served, therefore, I find no error of law in the impugned order.
The revision has been filed on the ground that revisionist has not been served during the proceedings of the award. Clause D of the ground is quoted below:
D. Because it is well settled that an order can be executed against a person who has been appeared as a party during the proceeding of suit but in the present case the revisionist have not been served during the proceeding of award and as such he could not be held liable for execution of award.
The grievance of the revisionist is that he has not been served with any notice of the Arbitration Award, the remedy will be available to him to raise objection either before the Arbitrator himself or by filing an application for setting aside the award. It is well settled that neither the objections can be taken during the execution nor the Executing Court can go behind the decree u/s 47 of the CPC in view of Babu Ram Jagdish Kumar and Others Vs. State of Punjab and Others, , Relevant portion of the said judgment is quoted below:
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.
Application has been filed by the revisionist on 3rd November, 2001 stating therein that due to non-availability of the papers, he is unable to file the objections during the execution proceedings.
If the revisionist files any objection, the same shall be considered in accordance with law.
Consequently, revision is dismissed with costs.