Calcutta High Court
Union Of India vs M/S. Jain & Associates on 25 September, 1998
Equivalent citations: (1999)3CALLT219(HC)
JUDGMENT
The Court
1. This is an application for recalling and/or setting aside the judgment and decree passed by this court on 28th April, 1997 in Award case No. 22 of 1997, The said decree was passed after the expiry of time fixed under the statute to make an application for setting aside the award after service of notice under section 14(2) of the Arbitration Act dated 18.3.97. The petitioner also prayed that leave be given to the petitioner to file the application for setting aside the award.
2. It is not in dispute that notice under section 14 of the Arbitration Act was duly served upon the petitioner on 21.3.97. The time for filing the application for setting aside the award under sections 30 and 33 of the Arbitration Act expired on 21.4.97.
3. It is also not in dispute that no application was make by the petitioner within the said statutory period. The matter appeared for judgment upon award before me on 21.4.97. The matter was called on in the presence of both the advocates of the parties. After hearing the submissions, this decree was passed in terms of the award on 20th April, 1997, after taking note of the fact that the petitioner has failed to make any application for setting aside the award on or before 21.4.97.
4. It has been alleged in the petition that on 28.4.97 the instant Award case No. 22 of 1997 appeared in the pre-emptory list under the heading 'judgment upon award'. It has further been alleged that when the said matter was called on, the counsel for Union of India submitted before me that since the application for setting aside the award was going to be filed, the court should adjourn passing the judgment upon award till the application for setting aside the award was filed.
5. However, the prayer of the learned counsel was not granted and decree was passed in terms of the award.
6. It appears from the list of dates filed on behalf of the Union of India that on 2nd May, 1997 application for setting aside the award was affirmed with a prayer for condonation of delay.
7. On 5th May, 1997 the istant application for recalling the decree upon award was affirmed and filed in the Computer section.
8. It has been submitted by Mr. Anindya Mitra, learned Additional Solicitor General, on behalf of Union of India that on April 28. 1997 when the decree was passed the learned Advocate for the petitioner, Union of India, appeared only for the purpose of making a prayer for adjournment and the same cannot be treated to be an appearance on behalf of Union of India since no submission was made by the learned Advocate for Union of India except praying for adjournment. It has further been submitted by Mr. Mitra that on 28.4.97 when the decree was passed, Union of India could not oppose passing of the decree, since the application for setting aside the award has not yet been made.
9. In support of his contention he has relied upon the following decisions :-
i) Satish Chandra Mukerjee v. Ahara Prasad Mukerjee reported in ILR 34 Calcutta 403
ii) Sohan lal Ruia and another v. Kedarnath Purushottamdas and Co. Private Ltd, and others
ii) Baijnath Bothra and others v. Kedar Nath Bothra and others
10. It has further been submitted on behalf of Union of India that the question in the instant case is whether sufficient cause for not making an application for setting aside the award during the period from April 21, 1997 till May 2, 1997 when the application for setting aside the award was actually affirmed is shown. The application for recalling of the decree is within the period of limitation of 30 days.
11. It has been argued on behalf of the Union of India that sufficient cause is to be liberally construed in the case of Government. Further submission of Mr. Mitra is that delay in the instant case in affirming application for setting aside the award is only 11 days. It is quite well known that the procedural delay is in-built in the case of Government. It has been submitted that the delay is for the period of 11 days only and sufficient cause as applicable in the case of Government have been adequately shown. Therefore, the decree should be recalled and application for setting aside the award should be taken up for hearing upon condonation of delay in terms of prayer(a) of the application for setting aside. The Government has to follow certain procedure before making and affirming the petition and since the delay is only for 11 days, the delay should be condoned and decree should be recalled and the application for setting aside the award should be taken up for hearing after condonation of delay in terms of prayer (a) of the application for setting aside.
12. Mr. Mitra has further submitted on merit of the award that the said award is for 48,21,696/- with interest at the rate of 18% per annum. It has also been pointed out that the respondent was a civil contractor and his claim arises out of alleged termination of the contract by the Government. The Government's case is that the contractor had repudiated the contract on its own accord, as will appear from the letter dated April 28, 1992 issued by the contractor which is a matter of record. There was no dispute regarding issuance of letter dated 28th April, 1992 by this contractor. The question is whether the contractor having himself rescinded the contract, can claim damages on the plea that the Government have also cancelled the contract. It has also been submitted that other grounds for setting aside the award which would justify that the decree be recalled.
13. It have heard the submission of the learned Advocates for the parties. The question that arises for consideration is if the provisions of Order 9 Rule 13 for setting aside the exparte decree applies to the facts and circumstances of the instant case. In the instant case, it is not in dispute that notice under section 14(2) of the Arbitration Act has been duly served and the time to make the application for setting aside the award has also expired. Under such circumstances, the Court has no alternative but to proceed to pronounce judgment in terms of the award. In this connection section 17 of the Arbitration, 1940 may be taken note of.
"Section 17--Where the Court sees no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside that award, the court shall, after the time for making an application to set aside the award has expired, on such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with, the award."
14. It appears on perusal of the said section when the notice under section 14(2) of the Arbitration Act has been served and no application has been made for setting aside or remitting the award or the time to made the said application has expired or an application has been made for such purpose but the same is dismissed, the Court is bound to pass judgment and decree in terms of the award and the Court has no alternative under such circumstances. It is only when there is irregularity namely no notice has been served under section 14, the decree has been passed or time to make the application for setting aside or remitting the award has not expired or the same is pending but the decree has been passed, there would be irregularity in passing the decree and the court can interfere.
15. In this connection the following decisions relied upon by the learned Advocate for the applicant may be taken note of.
i) Surajmull Nagarmull v. Golden Fibre & Products ;
ii) Madanlal v. Sunderlal ;
iii) Government of Andhra Pradesh v. Batchala Valaiah .
16. In the case of Surajmull Nagarmull v. Golden Fibre and Products , it was held that the provisions of Order 9 Rule 13 of the Civil Procedure Code does not apply to a proceeding for setting aside an ex-parte decree passed under section 17 of the Arbitration Act. Order 9 deals with suits and Rule 13 deals with setting aside of ex-parte decree passed in a suit. In an award case both the parties are entitled to pray to the Court to pronounce judgment in terms of the Award. Section 17 makes it mandatory on the part of the court to pass a judgment and decree in terms of the award in the circumstances specified in the said section. Such a decree may be pronounced in the absence of parties even then it cannot be said that the decree has been passed ex-parte.
17. It was also held in the aforesaid decision that the Court in its inherent jurisdiction has power to recall order or decree passed under section 17 of the Arbitration Act if it was passed irregularly, i.e. if it was passed without complying with the requirements of section 17 of the Arbitration Act, as for example, without serving notice under section 14(2) of the Arbitration Act or before the time to make an application for setting aside the award had expired or before an application made for setting aside the award had been dismissed.
18. It was further held that even in a case where decree upon award has been passed under section 17 of the Arbitration Act, if the applicant can satisfy the court that such decree should be set aside on grounds appearing sufficient to the court, the court has jurisdiction to set aside such a decree in its inherent jurisdiction for ends of justice. Whether the court would set aside such decree would depend on the question as to whether the court could extend the time for making an application under section 30 of the Arbitration Act for setting aside the award; and even if the court could extend such time, whether the court would extend the time in the particular case.
19. Formerly an application for setting aside an award could not be admitted after the prescrided period of thirty days (Article 158 of the Limitation Act. 1908). Now under the 1963 Limitation Act, section 5 applies to all applications except those under Order 21 of the CPC on sufficient cause, application under section 30 for setting aside an award may be admitted by court even after the period of 30 days as prescribed under Article 119(b) Limitation Act. 1963 as from date of service of notice under section 14(2). But sufficient cause within the contemplation of section 5 must be a cause which is beyond the control of the party invoking the aid of the section. The cause for delay in making the application which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of section 5 of the Limitation Act.
20. In the instant case, admittedly the applicant did not file any application for setting aside the award on the day when the matter appeared as judgment upon award although time to make the application has expired.
21. The applicant also did not make any application for extension of time to file an application under section 30 on the days when the 'judgment upon award' matter appeared in the list. It is quite true that the applicant prayed for adjournment to make an application but that prayer was disallowed. No cause was shown when such prayer for adjournmnet was prayed as to why the applicant could not file the application within the specified period and as such oral prayer for adjournment of the 'judgment upon award' matter was refused and a decree was passed in terms of section 17 of the Arbitration Act.
22. In Surajmull Nagamull v. Golden Fibre & Products (supra) it was held inter alia that the period of 30 days is 30 days from the date of service of the notice under section 14(2) of the Arbitration Act. This period of 30 days is the 'prescribed period' to make an application for setting aside the award under the Limitation Act 1963. On sufficient cause being shown, an application for setting aside the award may be admitted even after said prescribed period of 30 days.
23. The judgment and decision in the case of Ramlal and others v. Rewa Coalfields Ltd., may be taken note of. In the aforesaid decision the Supreme Court inter alia held in paragraphs 7 and 8 at page 363 and 364 as follows:-
"7. In construing section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathap an, ILR 13 Mad 269.
"Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood: the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafide is imputable to the appellant."
8. Now, what do the words 'within such period' denote? It is possible that the expression 'within such period' may sometimes mean during such period. But the question is : Does the context, in which the expression occurs in section 5 justify the said interpretation? If the Limitation Act or any other appropriate statute prescribes different periods of limitation either for appeals or applications to which section 5 applies that normally means that liberty is given to the party intending to make the appeal or to file an application to act within the period prescribed in that behalf. It would not be reasonable to require a party to take the necessary action on the very first day after the cause of action accrues. In view of the period of limitation prescribed the party would be entitled to take its time and to file the appeal on any day during the said period; and so prima facie it appears unreasonable that when delay has been made by the party in filing the appeal it should be called upon to explain its conduct during the whole of the period of limitation prescribed. In our opinion, it would be immaterial and even irrelevant to invoke general considerations of diligence of parties in construing the words of section 5. The context seems to suggest that 'within such period' means within the period which ends with the last day of limitation prescribed. In other words, in all cases falling under section 5 what the party has to show is why he did not file an appeal on the last day of limitation prescribed. That may inevitably mean that the party will have to show sufficient cause not only for not filing the appeal on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for whole of delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed. To hold that the expression 'within such period' means during such period would, in our opinion, be repugnant in the context. We would accordingly hold that the learned judicial Commissioner was in error in taking the view that the failure of the appellant to account for its non-diligence during the whole of the period of limitation prescribed for the appeal necessarily disqualified it from praying for the condonation of delay, even though the delay in question was only for one day; and that too was caused by the party's illness."
24. In Karalicharan Sarma v. Apurbakrishna Bajpey the same question was considered by our court. It appears in the aforesaid case that the papers for appeal were handed over by the appellant to his advocate in the morning of the last day for filing the appeal. Through pressure of urgent work the advocate did not look into the papers till the evening of that day when he found that that was the last day. The appeal was filed on next day. According to the majority decision of this Court, in the circumstances just indicated there was sufficient cause to grant the appellant an extension of a day under section 5 of the Limitation Act because it was held that it was enough if the appellant satisfied the court that for sufficient cause he was prevented from filing the appeal on the last day and his action during the whole of the period need not be explained.
25. It appears, however, in the instant case, simply prayer for adjournment was made as already mentioned hereinbefore when the matter appeared as 'judgment upon award' and on the ground that the application for setting aside award could not be made although no reason was assigned as to what happened on the last day.
26. The Supreme Court in Ramlal and others v. Rewa Coalfields Ltd.(supra) has made it clear that even after sufficient cause has been shown, the period is not entitled to condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on the ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. The Supreme Court accordingly observed in the said judgment as follows:-
" This aspect of the matter naturally introduced the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the court is dealing with applications made under section 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of sections 5 and 14. Therefore, in our opinion considerations which have been expressly made material and relevant by the provisions of section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under section 5 without reference to section 14. In the present case there is no difficulty in holding the discretion should be exercised in favour of the appellant because apart from the general criticism made against the appellant's lack of diligence during the period of limitation no other fact had been adduced against it. Indeed, as we have already pointed out, the learned Judicial Commissioner rejected the appellant's application for condonation of delay only on the ground that it was appellant's duty to file the appeal as soon as possible within the period prescribed, and that, in our opinion, is not a valid ground."
27. In the case of Modal Lal (dead) by LRs. v. Sunder Lal and Another the Supreme Court considered the scope of sections 17 and 30 of the Arbitration Act. The Supreme Court held that the court has to pronounce the judgment in accordance with the award if it sees no cause to remit the award or any of the matters referred to arbitration for reconsideration, or if it sees no cause to set aside the award. The court has to wait for the time given to a party to make an application for setting aside the award and where such an application has been made the court has to decide it first and if it rejects it the court proceeds to pronounce judgment according to the award. The Supreme Court further observed that "It is clear, therefore, from section 17 that an application to set aside the award is contemplated therein and it is only when no such application has been made within the time allowed or if such an application has been filed and has been rejected that the court proceeds to pronounce judgment in terms of the Award". The Act, therefore, contemplates, the making of an application to set aside an award and the grounds on which such an application can be made are to be found in section 30.
28. The Supreme Court further held in the aforesaid decision in paragraph 8 at page 1235 as follows :-
It is clear, therefore, from the scheme of the Act that if a party wants an award to be set aside on any of the grounds mentioned in section 30 it must apply within 30 days of the date of service of notice of filing of the award as provided in Art. 158 of the Limitation Act. If no such application is made the award cannot be set aside on any of the grounds specified in section 30 of the Act. It may be conceded that there is no special form prescribed for making such an application and in an appropriate case an objection of type made in this case may be treated as such an application if it is filed within the period of limitation. But if an objection like this has been filed after the period of limitation it cannot be treated as an application to set aside the award, for if it is so treated it will be barred by limitation."
29. What an aggrieved party to do when an award is passed by the Arbitrator has been provided in section 30. Section 30 gives an opportunity to the aggrieved pary to file an application for setting aside the award within 30 days from the date of service of the notice of filing of the award in the court on the ground mentioned therein. If such a petition is not filed under section 30 of the Act the court has to pass a decree under section 17 of the Act making the award the rule of the court irrespective of the fact whether the defendants do appear or do not appear and contest. Section 17 makes it mandatory on the part of the court to pass judgment and decree in terms of the award.
30. Following the principle the Division Bench of the Andhra Pradesh High Court in the case of Government of Andhra Pradesh v. Bactchala Balaiah held that a decree passed under such circumstances is not ex parte decree and the question of setting aside such a decree under Order 9 Rule 13 does not arise. Accordingly, the petition filed under Order 9 Rule 13 CPC for setting aside the ex parte decree which was passed under section 17 of the Arbitration Act is not maintainable.
31. Judgment and decision in the case of Ganeshmal v. S. Kesoram Cotton Miffs may also be considered in this connection. The said question was examined by Bachawat, J, as he then was, thoroughly with refernce to several decisions. In the aforesaid case, no service of notice of filing of the award in the court on the defendants in the manner prescribed by law. The limitation for applying to set aside the award therefore never started to run and the decree was passed before the expiry of the time for applying to set aside the award and without complying with the mandatory provisions of section 17, Arbitartion Act. Under those circumstances the learned Judge held and observed as follows :-
"In my judgment in spite of section 43 of the Arbitration Act and section 141 of the Code strictly the provision of 0.9 R. 13 does not apply to proceedings for setting aside of an exparte decree passed under section 17. In a suit there is plaintiff and defendant and 0.9, R. 13 deals with them differently, strictly neither party to an award is a plaintiff of defendant and both parties are entitled to ask the court to pronounce judgment according to the award. In a suit if the plaintiff does not appear no decree can be passed and if the defendant does not appear the plaintiff must prove his case. Under section 17 a judgment must be pronounced and a decree must follow, if the conditions of sections 14 and 17 are compliled with. Such a decree even if pronounced in the absence of the parties cannot be said to be passed as ex parte so as to attract 0.9, R. 13. 0.9, R. 13 enables the court to set aside an ex parte decree in case where the summons was not duly served but it does not provide for a case where the decree under section 17, Arbitartion Act, is passed without complying with its, mandatory provisions and before the expiry of the time for applying to set aside the award. The provision of 0.9. R. 13 of the Code cannot be made applicable to the proceedings for setting aside a judgment pronounced under section 17 of the Arbitration Act. In spite of section 43, Arbitration Act such provisions of the Code as are not consistent with the provisions of the Arbitration Act will not apply to the proceedings under the latter Act."
32. Bachawat. J, as he then was, also held and observed in paragraph 26 at page 15 as follows :-
"I have no doubt however that the principles of 0.9, R. 13 should be followed and the judgment and the decree passed under section 17 should be set aside where such decree was passed without duly giving the notice of the filing of the award or without allowing the time for applying to set aside the award to expire. In both cases the decree is irregularly passed and this Court sitting in revision will set aside such decree if passed by the muffasul Court. In my judgment if these are good grounds for revision they are equally good grounds for setting aside the ex parte decree on a summary application. It is settled law that the court has the inherent power and duty to correct injustce and to set aside a judgment and order passed ex parte without notice to the party. Bibi Tasliman v. Harihar, 32, Cal 253; Suderi Devi v. Sovaram. 10 Cal W N 306 at p. 309. In Hamp Adam v. Hall, (1911) 2 KB 942 Buckley L.J observed that where proceedings are taken by default every step in the proceeding must comply with the rules and that is a matter stricticirum juris. To obtain a judgment irregularly is a wrongfull act and the party applying is entitled ex debito justitiae to set it aside. Anlaby v. Paaetorius (1888) 20 QBD 764; Muir v. Jenks, (1913) 2 KB 412."
33. It appears on perusal of the provisions of section 17 of the Arbitartion Act as well as the decisions referred to above that an ex parte decree and/or order may be set aside within a period of 30 days provided a case is made out that the decree has been passed irregularly. In the following cases decree can be stated to be passed irregularly;
a) Decree is passed in terms of the award without serving any notice under section 14(2) of the Arbitartion Act. 1940;
b) Decree is passed within 30 days from the date of service of the noticeunder section 14(2).
c) Decree is passed without setting aside the pending application.
34. Under section 17 of the Arbitration Act once it is proved to the Court that notce under section 14(2) has been duly served and the time to make the application for setting aside the award has expired, the court has no alternative but shall proceed to pronounce judgment in terms of the award. In the instant case, there is no irregularity in passing the decree in terms of the award by me. The question of setting aside the decree does not arise at all.
35. Moreover, in the instant case, the application for setting aside the decree has been taken out within 30 days from the passing of the decree and as such the question of delay or condonation thereof does not arise.
36. Moreover, in the instant case, the applicant appeared at the time when the decree in terms of the award was passed and learned Advocate for the applicant prayed for adjournment on the ground that no application could be prepared. The court, however, did not comply with the said prayer since it was statutorily bound to pass a decree in terms of the award in the event of application has not been made within 30 days from the date of receipt of notice for setting aside the award,
37. Judgment and decision in the case of Continental Construction Ltd. v. Continental Float Glass Ltd. reported in (1997) I Arbitration Law Reporter 452 may be taken note of. In the aforesaid decision the judgment-debtor had filed an objection to the award within the statutory period prescribed for filing the same. On the date, when the matter came up for hearing, none appeared on behalf of the judgment-debtor, as a result whereof, the objection was dismissed for default. Consequently, the award was made a rule of the court and decree in terms thereof was passed. The judgment-debtor, thereafter, filed an application under Order 9 Rule 13 of the Code of Civil Procedure. In such case, provision of Order 9 Rule 13. Code of Civil Procedure would apply, where the award was made a rule of the court for default of the appearance of the objector.
38. It was, however, held in the said decision that if the judgment-debtor filed no objection to the award within the time and the objection alleged to have filed was not on record, a decree had to be passed in terms of the award on the basis that there was no objection. In such case, the court under section 17 of the Arbitration Act, 1940 is required to pass a decree in terms of the award. It cannot be stated that the decree passed in terms of the award was an ex parte decree.
39. In the instant case, no objection to the award has been filed within time and as such decree had to be passed in terms of the award on the basis that there was no objection.
40. Under such circumstances, the court is required under section 17 of the Arbitration Act, 1940 to pass a decree in terms of the award and such decree in terms of the award cannot be an ex parte decree.
41. I respectfully agree with the said decision as the principles decided that since the judgment-debtor did not file objection to the award within the stipulated time with the result is that the award was made a rule of the court and a decree was passed in terms of section 17 of the Arbitarion Act and the application under Order 9 Rule 13 is not applicable in the instant case.
42. The same question also arose before another learned Judge of this court in the case of Union of India v. A.K. Enterprise being G.A No. 724 of 1998, A.C. No. 97 of 1997. In the said decision the learned Advocate for Union of India took the same plea that the court can set aside a decree passed in terms of the award under Order 9 Rule 13 even if no application was made for setting aside the award within the time. Amitava Lala, J. considering the scope of section 17 of the Arbitartion Act held taking into consideration several decisions of this Court that provision of Order 9 Rule 13 of the Code of Civil Procedure is not applicable in a case where no application for remitting or setting aside or for any other reason prescribed under section 17 of the Arbitration Act is made within the prescribed period. It further held that principles analogous to Order 9 Rule 13 is inherent power of the court can only be applicable if objector's case falls within the following categories :-
i) An order under section 17 of the Act may be made whereby the award is made a rule of the court, even though the notice of filing of the award in the court may not have been sent to the parties.
ii) Such a notice may have been sent to the parties, but they may not have received it and an order under section 17 of the Act making the award a rule of the court may have been passed.
iii) Such a notice is sent and received by the parties but the time for filing objections as per Art. 119(b) of the Limitation Act, 1963 may not have elapsed and an order under section 17 of the Act may have been made making the award a rule of the court.
iv) The notice may have been sent and served and the time limit for filing objections may have elapsed and no objection against the award are filed; hence an order under section 17 of the Act is passed making the award a rule of the court.
v) A notice of the filing of the award is sent and served and objections are filed within the time prescribed but on the date of the hearing of the objections the objector or his counsel is unable to appear and an order is made under section 17 of the Act, making the award a rule of the court.
This position is being different from the aforesaid categories leads to dismissal of the application."
43. Considering the facts and circumstances of the case, and the decisions noted above I am of the view that the instant case does not call for exercise of inherent power for setting aside the decree. Considering the view I have taken there is no scope for going into the merits of the award although much argument has been advanced on the same.
Accordingly, the Application fails and is dismissed. There will be no order as to costs.
Mr. Samaddar, learned Advocate for Union of India, prays for stay of operation of the order inasmuch as he apprehends that the decree will be put into execution immediately. Mr. Bose, learned counsel for the respondent, submits that the decree will not be put into execution by the decree-holder within two weeks after reopening.
In that view of the matter, I am not inclined to pass any order for stay.
All parties concerned are to act on a signed copy of the operative portion of this judgment on the usual undertakings.
Xerox certified copy of this judgment and order may be supplied to the parties expeditiosly after all the formalities are complied with.
44. Application dismissied