Orissa High Court
Rajendra And Brothers, A ... vs Food Corporation Of India And 2 Ors. on 20 February, 2002
Equivalent citations: 2002(I)OLR446
Author: P. K. Tripathy
Bench: P.K. Tripathy
JUDGMENT P. K. Tripathy, J.
1. Heard argument analogously and both the civil revisions are disposed of by this common order.
2. The revision-petitioner is the decree-holder in Execution Case No. 103 of 1983 of the Court of Sub-ordinate Judge (presently designated as Civil Judge, Senior Division), Bhubaneswar. The judgment and decree passed by the learned Subordinate Judge, Bhubaneswar is O.S. No. 289 of 1980-1 is under execution. To resolve the dispute between the parties and in terms of the agreement, the dispute was referred to the Arbitrator, who passed a speaking award. After hearing both the parties, the trial Court made the award of the Arbitrator rule of the Court and accordingly passed the decree. The operating part of the award and the decree read as hereunder:
AWARD "The respondents do deliver the claimant an amount of Q.1301.4 Kg. of bran and Q.1616.74 of rice germ within a month on taking the price adjusting claims allowed under items 1 and 2 and pay him further a sum of Rs. 10,000/-. In case bran and germ are not delivered the claimant will get from the respondents a sum of Rs. 65018.59 with interest on the profits under the items 4 and 5 amounting to Rs. 4676.16 @ 12". In all he will get Rs. 69,694.75 paise.
This amount will carry interest at 12% per annum during pendency of the arbitration proceeding till date of award."
DECREE "This suit coming on this 5th day of May, 1981, for final disposal before Sri S. K. Satpathy, LL.B., Sub-
s Judge, Bhubaneswar in the presence of Sri A. M. Patnaik, Advocate, for the plaintiff and Sri R. Roy, Advocate for the defendant, it is ordered that the suit is decreed on contest with costs. The awarded is made rule of the court. The plaintiff is entitled for interest @ 12% from the date of decree till final payment. Misc. Case No. 26 of 1981 is disposed of accordingly. Defendants do pay Rs. 1788.13 towards the costs to the plaintiff."
3. The aforesaid execution proceeding was filed in the Court of Sub-ordinate Judge, Bhubaneswar on 24.10.1983. By then the Misc. Appeal No. 230 of 1981 was pending in this Court as against such award/decree. That appeal was preferred by the defendant/ judgment-debtor, i.e. F.C.I, and its officers. On 21.3.1985 the Misc. Appeal was disposed of by upholding the award passed by the Arbitrator and the decree passed by the trial Court with the modification of the decree by not granting the award of Rs. 10,OOO/-, as noted in the above quoted award/decree. As against that, the judgment-debtor preferred Civil Appeal No. 274 of 1997 in the Supreme Court of India. In February, 1999, that civil appeal was also dismissed on merit.
4. In the execution proceeding, the judgment-debtor entered appearance in 1984 and filed an application under Section 47 of the Code of Civil Procedure (in short, 'CPC'), challenging to the executability of the decree. Learned Sub-ordinate Judge allowed that application and ordered that in view of non-performing of his part by depositing the money relating to the price of rice bran and rice germ decreed under the award, the decree-holder has failed to make the decree executable. Accordingly he allowed that application under Section 47, CPC and that order is challenged in Civil Revision No. 814 of 1985. Learned sub-ordinate Judge passed a consequential order by dismissing the execution proceeding and that order is challenged in Civil Revision No. 813 of 1985.
5. Because of the oldness of the litigation and availing of each of the forums till the Apex Court the parties have been allowed to address the Court at length. After hearing the parties and eliminating the unnecessary details, it is seen that in the application Under Section 47, CPC the judgment-debtors while challenging to the executability of the decree, have not raised the issue that the decree is not executable because of failure on the part of the decree-holder to deposit the amount in terms of the order passed in the decree. Learned counsel for the petitioners, Mr. Sahu thus putting emphasis on the absence of such a plea in the application under Section 47, CPC, criticises the impugned order on the ground that learned Civil Judge has over-stepped his jurisdiction in deciding an issue, which was neither raised nor canvassed in that Court. Mr. Rath, learned counsel for the judgment-debtors while fairly conceding to the contention of learned counsel for the decree-holder that such a ground has not been raised in the application Under Section 47, CPC, nontheless argues that once such a ground of non-performance of his part by the decree-holder having come to the notice of the Court, it has jurisdiction to pass appropriate order even if such a ground, inadvertently though, not raised in the application under Section 47, CPC.
6. It is true that all questions arising between the parties to the suit, in which the decree was passed and relating to execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and adjudication of such matter is independent of an execution proceeding. Therefore, the aforesaid contention of Mr. Rath has some force. But, entertaining the dispute and deciding the issue in the complained manner amounts to violating the principle of natural justice for not affording an opportunity of hearing and to place his contention on that issue by the decree-holder. It is therefore appropriate that the matter should be remitted back to the Court below with a direction to hear and dispose of the application u/s. 47, CPC so also the matter relating to execution, discharge or satisfaction of the decree.
7. In view of the oldness of the execution proceeding, it is directed that the Executing .Court shall do well to dispose of the issue, as far as practicable, within a period of four months. If the parties to the proceeding, i.e., decree-holders and judgment-debtors shall apply to amend their respective applications, i.e., applications under Order 21, Rule 11(2) and Section 47, CPC and make such applications within a period of six weeks hence, then such opportunity shall be granted to both of them. Both the parties undertake to appear before the Executing Court, i.e., Civil Judge (Sr, Division), Bhubaneswar on 16.3.2002 (as agreed by counsel for both the parties). Therefore, no further or fresh notice shall be issued to any of the parties, and default in appearance on that date shall be treated as such.
8. Send back the L.C.R. alongwith a copy of this order to the Court below in the hands of a special messenger so as to ensure its reaching in that Court by 8.3.2002. Mr. Rath, teamed counsel for the opp. parties undertakes to deposit the cost of the special messenger by 28.2.2002.