Nafees Sultana vs M/S. Margadarsi Chit Fund ...
2023 Latest Caselaw 5086 AP

            THE HON'BLE MS JUSTICE B.S.BHANUMATHI

               Civil Revision Petition No.2502 of 2023

ORDER:

This revision petition is filed under Section 115 of CPC to dismiss

E.P.No.423 of 2022 in AOP.No.136 of 2018 on the file of Court of

Principal Junior Civil Judge, Vijayawada, filed under Order 21, Rule 43

CPC.

2. The revision petitioner inadvertently mentioned the prayer at the

beginning of the revision petition that it is filed against/aggrieved in not

disposing E.P.No.423 of 2022. Since it could be a mistake as can be

seen from the grounds raised which are in consonance with the prayer

to dismiss E.P.No.423 of 2022. As such, it is ignored.

3. The revision petitioner stated that the claim petition was filed by the

respondent under Section 23 of Arbitration and Conciliation Act (in

short 'the Act') and also filed E.P. for attachment of the movable

properties by execution of the award obtained ex-parte suppressing the

facts and not duly following the procedure laid down under the

provisions in Sections 7, 8 and 21 of the Act. The revision petitioner

further contended that the arbitration agreement is not valid under law

and that the party making the application was not given proper notice

of the appointment of an arbitrator or of the arbitral proceedings. It is

further claimed that the execution petition was filed under Order 21

Rule 48 of CPC praying the Court to attach the schedule movable

C.R.P.2502 of 2023

properties of J.Drs/revision petitioners No.1 to 4, so the execution

petition is illegal. The petitioners claim that they hail from respectable

families and they represented before the execution Court that they were

not provided any documents by the respondent and also in arbitration

proceedings.

4. Since copy of the petition was already served on the standing

counsel for the respondent, he made appearance by filing vakalat.

5. Heard the learned counsel for the revision petitioners and the

learned counsel for the respondent.

6.(a) The learned counsel for the revision petitioners submitted that no

notice was served before appointment of the arbitrator and also about

institution of the arbitration proceeding and thus the ex-parte decree

was obtained and later execution proceedings were initiated and

therefore, it is only on receipt of notice in the execution proceeding, the

petitioners have came to know about the proceedings or else they did

not have any knowledge of the proceedings. In this regard, he further

submitted that since there was no earlier notice, they could not

challenge the award in time and thereby they are precluded from

challenging the award and thus, the execution proceedings are vitiated.

(b) Nextly, he submitted that the order passed by the execution Court is

for attachment of movable properties, whereas the execution petition is

filed under Order 21 Rule 48 CPC which deals with attachment of

C.R.P.2502 of 2023

salary of J.Dr and therefore the execution proceedings are not

sustainable.

(c) Without raising any ground in the revision petition, he further

submitted that the J.Drs paid Rs.25,000/- on 12.11.2021 and another

amount of Rs.25,000/- on 24.05.2022 through online banking but the

same was not deducted. Similarly he argued that though the execution

petition was filed beyond two years of passing of the award/decree, the

procedure contemplated under Order 21, Rule 22 CPC was not

followed.

7.(a) In reply, the learned counsel for the respondent submitted that the

provisions of the Act do not apply to the proceedings of arbitration

under the Chit Fund Act, 1982 and that the appeal against the award

would lie only to the Secretary to the Government, but the revision

petitioner did not take such remedy. In this regard, he further

submitted that the execution petition for execution of the award/decree

passed under the Chit Fund Act would lie before the Court as per the

pecuniary jurisdiction, unlike the execution petition for execution of

award passed under the Act and thus, there is difference between these

two enactments and so the arguments in this regard raised by the

revision petitioners would not stand.

(b) Insofar as the service of notices is concerned, he submitted that the

award itself speaks that notices were sent to opponents No.1 to 7 by

personal service through registered post with acknowledgement due

C.R.P.2502 of 2023

and after receipt of summons, the opponents No.1 to 7 were called

absent and set ex-parte.

(c) Nextly, about the payments made, he submitted that the calculation

shown in column No.9 of the execution petition shows deduction of

amount of Rs.25,000/- paid on 13.11.2021 and another amount of

Rs.25,000/- paid on 25.05.2022 and thus, both payments stated to be

made through NEFT were deducted.

(d) With regard to application of the Order 21, Rule 22 CPC, he referred

to the provisions in CPC.

8.(a) In reply, the learned counsel for the revision petitioners submitted

that apart from the payment made through NEFT, amount in cash was

also paid to the respondent on both occasions and such amounts were

not reflected.

(b) He further submitted that the award in execution was challenged

before the Secretary to the Government and thus, steps were already

initiated to challenge the award.

9. The grounds raised about the validity of the award, since already

steps were taken challenging it in proper course as provided in the Act

cannot be raised now.

10. Insofar as, non-deduction of the payments made are concerned,

first of all, it is to be noted that no such ground was taken in the

C.R.P.2502 of 2023

revision; secondly, the amounts said to be paid have already been

mentioned in the execution petition and deductions were made and;

thirdly, without proof of payment of amount in cash, it is not a ground

to challenge the execution petition in revision, the submissions made

are not sustainable. If at all the petitioners have any such proof, they

can show it to the execution Court by filing counter and placing

evidence.

11. Admittedly, the revision petitioners have not yet filed counter and

the enquiry is still due before the execution Court. Insofar as challenge

under Order 21, Rule 22 CPC is concerned it is open for the revision

petitioners to raise the same ground before the execution Court.

Further, it is seen from the record that the Award is dated 26.04.2019

and whereas the execution petition was filed in November, 2021 and

thus it is beyond two years. The record also does not indicate that any

notice under Order 21, Rule 22 was ordered or served on the

respondent. It is pertinent to mention that Order 21, Rule 22 (1) proviso

applicable to the State of A.P. as amended in the State of Madras says

that:

"Provided that no order for execution of a decree shall be invalid owing to the omission of the Court to record its reasons unless the judgment-debtor has sustained substantial injury as the result of such omission".

12. Therefore, it is a matter of fact to be enquired into depending on the

issue raised. Thus, on that ground also, the execution petition does not

require interference in the revision.

C.R.P.2502 of 2023

13. Insofar as mentioning of Order 21 Rule 48 CPC is concerned, in the

title of the execution petition, Rule 48 is wrongly mentioned, but in the

prayer portion at column 10 of the execution petition, it is correctly

mentioned as Order 21, Rule 43 CPC and the prayer is for attachment

and sale of movable properties. Therefore, for mere typographical error

at one portion of the execution petition, the whole petition need not to

be dismissed. It is also settled law that quoting of wrong provision is

not fatal for maintainability of a proceeding and it is the substance of

the proceeding as a whole shall be taken into account. Thus, on this

ground also, the revision petition does not lie.

14. As such, this Court not inclined to interfere with the proceedings

before the execution Court in E.P.423 of 2023 in AOP.No.136 of 2018.

However, the revision petitioners are given liberty to raise all the

grounds before the execution Court within parameters of law relating to

execution. It is made clear that the execution Court is at liberty to pass

appropriate orders after hearing both parties. Accordingly, revision

petition is disposed.

There shall be no order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

______________________ B.S.BHANUMATHI, J 18.10.2023 NSM

C.R.P.2502 of 2023

THE HON'BLE Ms. JUSTICE B S BHANUMATHI

C.R.P.No.2502 of 2023

18.10.2023

NSM