M/s. R.S. Bajwa and Co. vs State of C.G. and Others

Abhay Manchar Sapre, J.—Heard. This is an appeal filed by the appellant of W.P. No. 3700/2008 u/s 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 against the order dated 05.08.2008 passed by the Single Judge in the aforementioned writ petition.

By the impugned order, the writ Court dismissed the writ petition filed by the appellant and declined to grant the relief(s) claimed by him in the writ petition.

In order to appreciate the issue involved in the appeal, it is necessary to recapitulate the relevant facts involved in the case.

The appellant (writ petitioner) is the Civil Contractor. They were awarded civil construction work by the State (respondent herein). It is in execution of this work contract, the disputes arose between the appellant and the State. These disputes could not be settled amicably between the parties and hence, were referred to Arbitrator. A retired Superintending Engineer was appointed as sole Arbitrator for their resolution. The Arbitrator accordingly embarked upon the reference and delivered the award in appellant''s favour for Rs. 1,32,000/- together with interest against the respondents while deciding their several claims.

The appellant (decree holder) then filed the execution application under Order 22 of CP. Code before the District Judge for recovery of Rs. 1,32,000/- with interest as against the respondent (State) because the State despite suffering the award which became a decree of Civil Court u/s 36 of the Arbitration and Conciliation Act (for short called "the Act") did not pay the decreetal sum to the appellant.

It is in these execution proceedings, the State raised the objection about the validity and enforceability of the award/decree. According to the State, the award/decree was a nullity because the remedy of the appellant (decree holder) lay in invoking the provisions of the Chhattisgarh Madhyastham Adhiniyam (for short called the Adhiniyam) for obtaining the decreetal sum rather than to take recourse to the remedy of appointing sole arbitrator under the provisions of the Act. In other words, the objection of the State was that award in question which has taken the shape of a decree of the Civil Court by virtue of Section 36 of the Act was a nullity because the remedy of the appellant in such case was to file a claim petition before the Statutory Tribunal constituted under the Adhiniyam for recovery of their outstanding dues. It is on this ground, the respondent (State) prayed for dismissal of execution application as not maintainable.

This objection of the State found favour to the Executing Court (District Judge), the execution application filed by the appellant (decree holder) was rejected by the District Judge by order dated 5.5.2007. It was held that the Executing Court had no jurisdiction to execute the award which was a nullity by virtue of the applicability of the provisions of the Adhiniyam. It is against this order (05.05.2007), the appellant felt aggrieved and filed writ petition under Article 227 of the Constitution of India. The writ Court (Single Bench) dismissed the writ petition by its order dated 05.08.2008 and upheld the order of Executing Court. The appellant (writ petitioner) felt aggrieved of the order of the writ Court, filed this appeal.

By order dated 27.08.2010, the Division Bench allowed the appeal and remanded the case to the District Judge for deciding the execution application afresh on merits holding that the award passed by the sole arbitrator cannot be held as nullity.

The respondent (State) felt aggrieved of the order, filed Special Leave to Appeal to the Supreme Court being SLP NO (C) No. 29617-29618 of 2011. The Supreme Court by order dated 17.04.2012 passed in Civil Appeal Nos. 3666-3667 of 2012 allowed the appeal and remanded the case (appeal) to the High Court for its hearing in accordance with law on merits after taking into consideration the observations made in the order of remand.

This is what was held by the Supreme Court while allowing the State''s appeal and remanding the case to this Court for deciding the matter afresh on merits.

The Division Bench of the High Court has reversed the view taken by the Single Judge as also the executing Court relying upon the decision of this Court in VA TECH ESCHER WYASS FLOVEL LTD. (supra). It is evident from the plain reading of the impugned order that it has not adverted to any other aspect or issue which learned counsel for the respondent sought to raise before us. In the circumstances and keeping in view the fact that the decision of this Court in VA TECH ESCHER WYASS FLOVEL LTD. (supra) has been reversed, the only option available to us is to set aside the order passed by the High Court and remand the matter back to the Division Bench for a fresh hearing and disposal in accordance with law. It is true that we could ourselves have looked into these aspects also, but we would not have in that case the advantage of the opinion of the High Court on those aspects.

In the result, we allow these appeals, set-aside the impugned judgment and order and remit the matter to the High Court with a request to it to hear and dispose of the appeals afresh in accordance with law. Needless to say that all contentions and questions are left open for consideration by the High Court. In view of the fact that the matter is fairly old, we request the High Court to expedite the hearing and disposal of the appeal as early as possible.

It is with this background, this appeal is restored to its file for its disposal on all the issues.

At the outset, we consider it apposite to mention that both the learned counsel appearing for the parties brought to our notice one legal issue arising in the case. According to them, since the issue arose out of execution under Order 21 of C.P. Code before the District Judge because the award of arbitrator was in the nature of decree by virtue of Section 36 of the Act read with Section 2(2) of CPC and hence, the Executing Court (District Judge) being subordinate to the High Court their all orders were amenable to challenge in civil revision u/s 115 of the C.P. Code before the High Court, It was pointed out that since the order of the District Judge dated 05.05.2007 resulted in disposal of the execution case finally and hence, it satisfied all the requirements of filing revision u/s 115 ibid. It was pointed out that in such case the revision was the only appropriate remedy to challenge the order of the executing court rather than a writ petition under Article 227 of the Constitution of India. It was also pointed out that it is for this reason this Court should set-aside the impugned order and convert the writ petition as civil revision Section 115 of the C.P. Code for its hearing to examine the legality and correctness of the order of the Executing Court as per remand order of the Supreme Court.

We are inclined to accept this submission as in our opinion the course suggested by the counsel appearing for the parties appears to be just and legal.

Section 36 of the Act and Section 115 of CP. Code are relevant and hence, need reproduction below:

Section 36. Enforcement''- Where the time for making an application to set aside the arbitral award u/s 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 "(5 of 1908) in the same manner as if it were a decree of the Court.

Section 115 Revision - (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.

the High Court may make such order in the case as it thinks fit: (Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except whether the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings).

((2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto).

((3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court).

(Explanation)-In this Section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.)

It cannot be disputed that the award passed in this case was in the nature of a Decree by virtue of Section 36 of the Act read with Section 2(2) of C.P. Code for its execution. It also cannot be disputed that the order passed by the District Judge dated 05.05.2007 was an order passed under Order 21 of C.P. Code which had resulted in disposal of execution application.

In the light of these two admitted facts, in our considered opinion, the order passed by the District Judge - and he being subordinate to the High Court within the meaning of Section 115 of C.P. Code was amenable to the Revisionary jurisdiction of this Court u/s 115 of C.P. Code and the same could not be made subject matter of the writ jurisdiction under Article 227 of the Constitution. In other words, every order (if not made appealable) passed under the C.P. Code is amenable to the remedy of the civil revision u/s 115 of CP. Code. This issue had significance in this case because, if the order had been passed under Article 227 of the Constitution, then an aggrieved was entitled to take recourse to filing of the intra Court appeal u/s 2 of the Chhattisgarh High Court (Appeal to Division Bench), Act (for short called "the Act") if it satisfied its requirements of filing an appeal.

In any case, so far as an order passed u/s 115 of the C.P. Code by the High Court was concerned, it was not appealable to further intra court appeal under C.P. Code or u/s 2(1) of Act.

It is a settled principle of law that consent or acquiescence or estoppels or waiver do not play any role while deciding the issue of jurisdiction of any Court between the parties. In other words, no party can say that he or his adversary has given the consent for deciding the case in particular forum by particular court. Law does not permit it. Since such issue affect the very jurisdiction of the Court and hence, the same is required to be decided as and when raised by any party.

Indeed the Supreme Court while remanding the case has granted liberty to the parties to raise all issues. It is for this reason, we are at liberty to examine the issue relating to jurisdiction of the writ Court out of which this appeal arises.

We, however, make it clear that we have not examined the question as to whether this intra court appeal is maintainable or not because in our opinion once the Supreme Court permit this Court to decide the appeal on all issues then it is the duty of this Court to ensure compliance of the directions issued in that regard in its proper perspective and pass appropriate orders in compliance thereof.

In the light of foregoing discussion, since we find merit in legal position brought to our notice by both the learned counsels and hence, we allow the appeal and set-aside the order passed by the writ Court (Single Bench) and in consequence, remand the case with a direction to the Registry to register the writ petition (C) No. 3700 of 2008 as Civil Revision u/s 1175 of CP Code and accordingly place it for hearing before the appropriate Bench hearing Civil Revisions u/s 115 of C.P. Code as per roster. We also direct that the civil revision would be decided on its merits keeping. in view the observations and directions made by the Supreme Court in the order dated 17.4.2012 passed in C.A. NO 3666-3667 of 2012 mentioned above.

The matter be now expedited early as directed by the Supreme Court in their order by the appropriate Bench. No cost.