Babu Lal Sharma vs Union Of India (Uoi)
2000 Latest Caselaw 1034 Del

JUDGMENT

Vikramajit Sen, J.

1. This application has been filed on behalf of the Union of India under Section 151 of the Code of Civil Procedure for recalling the Order dated 10.3.1999 and 19.03.1999, which were as follows:

"10.03.99

Present: Mr. Rajesh Lakhanpal for the DH.

Ex. 133/98

Heard the learned counsel for the petitioner.

2. Issue warrant of attachment for attachment of Rs. 1,84,069,32 laying in bank account number given in para 8(i) of the application, returnable by 12th July, 1999. Steps within five days.

List the matter before the appropriate Bench.

March 10,199Sd/- Mohd. Shamim, J

19.03.99.

Present: Mr. Rajesh Lakhanpal for the decree holder.

EA 149/99 in Ex. 133/98

3. This is an application by the decree holder for modification of the order dated 10th March, 1999 with regard to the issue of warrant of Attachment in the sum of Rs. 1,84,069.39. Learned counsel for the decree holder now states that inadvertently the Warrants of Attachment were got issued in the sum off Rs. 1,84,069.39. In fact, then amount to be attached is Rs. 2,89,299.04. The details thereof have been given in the Annexure 'A' annexed with the present application.

4. In view of the above then order dated 10th March, 1999 is hereby modified to the extent that Warrant of Attachment would be issued in the sum of Rs. 2,89,299.04.

Ex. No. 133/98

5. Issue Warrants of Attachment in the sum of Rs. 2,89,299.04, as per order dated 10th March, 1999, returnable by 12th July 1999, the date already fixed.

Steps within five days.

March 19, 1999Sd/- Mohd. Shamim, J."

6. Pursuant to these Orders a sum of Rs. 2,89,299.04, in the Judgment Debtor's account bearing No. 3215321004, in the Reserve Bank of India was attached Reliance is placed by Learned Counsel for the Judgment Debtor, on Clause 29 of the Contract which contemplates the circumstances in which a lien is created in favour of the Government. It reads as follows:

CLAUSE- 29 (i): WITH HOLDING AND LIEN IS RESPECT OF SUMS CLAIMED:-

"Whenever any claim or claims for payment of a sum of money arises out of or under a contract against the contract or the Engineer in charge of the Government shall be entitled to with hold and also have a lien to retain such sum or sums in whole or in part from the security if any deposited by the contractor and for the purpose aforesaid the Engineer incharge for the Government shall be entitled to with hold the security deposit, if any, furnished by the contractor as the case may be and also have a lien over the same pending finalisation or adjudication of any such claim. In the event of the security being insufficient to cover the claimed amount or amounts or if no security has been taken from the contractor, the Engineer-in-Charge or the Government shall be entitled to withhold and have a lien to retain to the extent of such claimed amount or amounts referred to above from any sum or sums found payable or which at any time thereafter may become payable to the contractor under the same contract or any other contract with the Engineer-in-Charge or the Government or any contracting person through the Engineer-in-Charge pending finalisation or adjudication of any such claims."

7. The question that arises is whether the applicant is entitled to adjust a sum of Rs 1,41,310/- from the decretal amount allegedly payable by the Decree Holder to the Government (Judgment Debtor) under another contract. This sum is stated to have become payable to the Judgment Debtor in respect of an Award dated 15.12.1997, which admittedly is the subject of a challenge under Section 34 of the Arbitration and Conciliation Act, 1996 in O.M.P. No. 49/1998. This petition has not been disposed of till date.

8. The first contention raised in opposition to the application is that if the prayer is entertained it would necessarily entail an enquiry behind the decree, which is impermissible in law. Attention is directed to the decision in A.V. Kannappa Mudaliar v. V.C. Chellakutti Udayar, , in which the Court went to the extent of holding that where an execution petition was dismissed in default it was, mandatory to recall attachment orders, but on its failure to do so, these orders would continue even in the absence of a fresh execution petition. The other observation in this decision was that the executing Court would not look into a post-decretal arrangement for saying the execution process. This precedent is thus an authority for the proposition that collateral consideration cannot impede the culmination of such proceedings, to the satisfaction of the Decree Holder. The decision of this Court in Hafiz Rahimud Din v. Tirlok Singh, , deals with pre-decree matters, and prescribes that these questions should also not be considered. To the same effect is the view of the Division Bench expressed in Krishna Raj Trading Corporation v. Ram Saran, . The decisions on all fours with the facts of the present case and hence the following passage calls for reproduction herein so as not to dilute its applicability:

The terms of Section 47, C.P.C. appear to us to be clear and unambiguous. Only questions relating to the execution, satisfaction and discharge of a decree can be raised under that section. It is well settled that except in certain exceptional circumstances e.g., when the decree is a nullity or patently without jurisdiction, it is not open to the Court to go behind the decree and to question its validity. Nor can the executing Court say that the decree should have been passed in a way different from the say in which it has actually been passed and then proceed to execute it as if it had been passed in that other manner. If, therefore, a decree is clear and unconditional the executing Court cannot on any basis make the decree conditional or hold that it was not intended to be executed in certain circumstances because of an agreement arrived at before the decree was passed. If there was such an agreement the only thing which the parties could do was to being forward that agreement at the time when the decree was being passed and to have it incorporated in the decree. That not having been done the agreement, if any, must be deemed to have been superseded by the decree and the decree must be given effect in preference to the alleged agreement. Having failed to put forward the agreement at the time when the decree was being passed, (for the omission the judgment-debtor could only blame itself) it was no longer open to it to pour forward the agreement at the time of execution and to say that the agreement should be honoured and the decree should not be executed on that basis. Setting up of such a pre-decree agreement in the execution department is, it appears to us, not permissible under Section 47, C.P.C."

9. Applying the ratio of Krishna Raj's Trading Corporation (supra) to the facts of the present case, consideration of Clause 29 would entail going behind the decree, and is bus impermissible. The contention of Learned Counsel for the Applicant that all that the Court is doing is freezing an amount of Rs. 1,41,310/-, without thereby touching thedecree, is specious and cannot be accepted. The effect of the 'freezing' is to countenance an alleged agreement not specifically countenanced in the Decree.

10. In. Uttam Singh Duggal v. U.O.I., 1990 (2) Arb. Law Reporter 344, this Court directed the Government to withdraw a letter requiring sundry Authorities to withhold money due to the Contractor, on account of compensation, for the reason that Clause 29 give them power to do so.

In this analysis, the application is misconceived and untenable. This Court, cannot in execution proceedings, enter upon extraneous consideration so as to leave inchoate the process for the satisfaction of the decree. The application is dismissed.

Ex. No. 133/1998.

11. A direction will issue to the Reserve Bank to remit the attached sum of Rs. 2,89,299.04 to the Registrar of this Court. The Registrar shall make payment of the sum to the Decree Holder and simultaneously obtain the Decree Holder satisfaction as envisaged in Order XXI of then Code of Civil Procedure.

12. Execution proceedings are disposed off in these terms.