Trivedi Mulshanker vs Narshidas Popatbhai

Chhatpar, J.—This is a first appeal from an order passed in execution of a mortgage decree passed on an award. The parties had referred their disputes outside Court to an arbitrator by a reference dated 07-10-51. The arbitrator gave his award on 08-10-51. The last portion of the award recites that the decision given in the award was read over to the parties and they had consented to the same, in token whereof they had signed underneath the award. The award shows the signatures of both the parties under the signature of the arbitrator. On 10-10-51, both the parties jointly filed an application for filing the award and passing judgment in terms thereof. This application was accompanied by the reference as also the award. On the same day, it appears, the Civil Judge to whom the application with the annexures was presented read over the award to the parties, who again expressed their consent to the provisions of the same; the Court then ordered decree to be framed in terms thereof. The Civil Judge obtained the signatures of both the parties under his order. It would, therefore, seem that the Court did not follow the procedure prescribed u/s 14, Arbitration Act for issuing notice to the parties but pronounced judgment on the same day, on which the decree followed. The parties evidently invited the Court to pass judgment immediately and waived the required notice of the filing of the award to be given to the parties u/s 14, Arbitration Act.

On 13-06-52 i.e. about 9 month after the award, an execution application was presented for enforcement of the decree. The judgment debtor raised objections. The only objection pressed was that the decree was a nullity on two grounds; firstly, that no notice of the filing of the award was issued as enjoined by Section 14, Arbitration Act, and secondly, that the Court had no jurisdiction to pronounce a judgment in terms of the award till the period of 30 days for filing objections to the award had expired as required by Section 17 of the Act. These objections were overruled by the lower Court and the judgment-debtor has now come in appeal.

I have heard Mr. Maniar the learned Advocate for the judgment-debtor at length and he has reiterated the same objections as urged in the lower Court. He has relied upon the cases reported in -- Srikishin Rochumal v. Relumal AIR 1916 Sind 70 (A); --- Ravjibhai Kashibhai Vs. Dahyabhai Zaverbhai Patil, ; -- Achaber Pandey v. Kuldip Singh AIR 1925 Rang 103 (C); -- Udit Singh and Others Vs. Ram Lakhan Singh and Others, and Pendyala Subba Rao Vs. Lingamallu Ramalingayya, , in support of his argument that the Court''s action in pronouncing the judgment before the expiry of 30 days was illegal, and for the proposition that such an objection can be taken in an execution application, he has relied upon rulings reported in -- Uttam Chand v. Wasudeo Deorao AIR 1946 Nag 311 (F); -- A. Ramu Mudali Vs. Shobagmul Sowcar and Another, ; -- Rabindra Nath Chakravarthi Vs. Jnanendra, Mohan Bhaduri and Others, ; AIR 1949 106 (Nagpur) and -- Ganeshmal Bhawarlal Vs. Kesoram Cotton Mills Ltd., . Mr. Doshi the learned Advocate for the other side has relied upon the cases reported in -- Bankey Lal and Another Vs. Chotey Miyan Abdul Shakur ; -- AIR 1943 304 (Oudh) ; -- Abdul Karim Vs. Kallan, ; -- S.A. Nathan v. S.R. Samson AIR 1931 Rang 252 (FB) (N); -- Ganga Prasad v. Mt. Banspati AIR 1936 Nag 246 (O) and -- Jagannath Fakirchand Vs. Shivnarayan Ramlal, .

I had occasion to deal with the powers of an executing Court to go behind the decree in the case of -- Md. Husain Khanji v. Parekh Girdharlal Makanji First Appeal No. 75 of 1950 (Q), and after reviewing the authorities of the Privy Council and the different High Courts on the subject, I came to the conclusion that it is only in a case of inherent incompetency of the Court to pass a decree that an executing Court is justified in refusing to execute a decree; e.g. a decree against a person who is dead is a nullity, as the CPC does not contemplate a decree being passed against a dead person; a Small Cause Court has no inherent jurisdiction to pass a mortgage decree and if such a decree is passed by a Small Cause Court, it would be a nullity. If a decree has been passed by a Court of competent jurisdiction but there is any irregularity or illegality in passing a decree, such a decree cannot be considered a nullity, although it is liable to be set aside in appeal or revision. The executing Court cannot go behind the decree except that it can refuse to execute a decree where the Court which passed it had no inherent jurisdiction.

In the present case the Court of the Civil Judge had admittedly jurisdiction to accept the filing of the award and to pass judgment in terms thereof, on which a decree would follow in accordance with the provisions of the Arbitration Act. The act of the Court in passing judgment before the expiry of 30 days would be at the most an illegality according to the Sind decision reported in AIR 1916 Sind 79 (A), or a mere irregularity according to the Allahabad decision in -- Bankey Lal and Another Vs. Chotey Miyan Abdul Shakur , which might or might not be liable to correction in a Court of revision. The cases cited by Mr. Maniar are those where such illegality or irregularity in not conforming to the provisions of the Arbitration Act came to the High Court in revision from the original orders, and they are consequently no authority for the proposition that such objections as to the illegality or irregularity could be entertained by an executing Court. Consequently, the lower Court was right in rejecting the objections of the judgment-debtor.

There remains a question whether I should interfere, sitting as a Court of revision, and set aside the decree of the Court, as the same was passed before the expiry of 30 days. A revision application for this purpose would be apparently time barred, as the judgment was given on 10-10-51, and the present appeal has been filed on 19/7/52. This is an extraordinary power which the High Court exercises in rare cases to remedy a patent injustice. In the present case it appears that both the parties had agreed to the award and. signed their acceptance underneath it. They both presented the award in Court and invited the Court to pass a judgment in terms thereof. The Civil Judge further took the precaution to read over the award to the parties, who accepted it, and recorded their consent by their signatures. Taking these circumstances into consideration, I do not feel justified in interfering, as a Court of revision, with the decree passed by the trial Court.

The appeal is, therefore, dismissed with costs.