Mcd vs Ramey
2008 Latest Caselaw 1368 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


                                           Decided on : August 18th, 2008


+     EXECUTION PETITION NO. 93/2004


      MCD                                     ..... Decree Holder

                  Through : Mr. Sanjeev Sabharwal with
                            Mr. Alok Singh, Advocates

                  versus


      RAMEY                              ..... Judgement Debtor

                       Through : Mr. Amit Gupta, Advocate


CORAM:

Mr. Justice S. Ravindra Bhat

1.    Whether reporters of local papers may be
      allowed to see the judgment?                        Yes
2.    To be referred to the Reporter or not?              Yes
3.    Whether the judgment should be reported
      in the Digest?                                        Yes



Mr. Justice S. Ravindra Bhat (Oral)

EA No. 323/2007


1.    This application under Section 47 of the Code of Civil Procedure (CPC)

objects to maintainability of the present execution proceedings filed by the

decree holder Municipal Corporation of Delhi (MCD) for execution of a decree

Ex.P.93/2004                                                           Page 1
 arising out of an award dated 5th October, 1993. The award was made Rule

of Court by judgment dated 11th April, 2002 in Suit No.2752/1993.

2.    The applicant, judgment debtor objects to the maintainability of the

execution on the ground that the ex parte award as confirmed by the ex

parte order of this Court was procured by fraud. According to the applicant

the parties had entered into an agreement         on 21.01.1992 whereby the

judgment debtor was to provide services by way of disposal of carcasses of

animals to the MCD. The MCD alleged that the judgment debtor did not take

charge of the contract and sought to levy damages.

3.    The dispute was referred to arbitration. The judgment debtor contends

that even though he participated in the arbitral proceedings but on one

crucial day he was unrepresented, as a result the arbitrator decided against

him. The award was thereafter referred to the Court under the provisions of

the old Arbitration Act. The judgment debtor was not represented before the

Court even though served.          The court therefore, after considering the

materials on record and pleadings, and affirmed the award.          The decree

holder MCD approached this Court in these circumstances for execution.

4.    The applicant/judgment debtor appears to have approached the

Division Bench in a belated appeal being FAO (OS) 242/2005, which was

dismissed on 7th August, 2006, inter alia on the ground that it was highly

belated being filed 1203**** after the last date of prescribed for filing such

appeals.       In the course of the order the Division Bench in its order also

expressed itself on the merits, stating that even on merits the appellant


Ex.P.93/2004                                                             Page 2
 (judgment debtor herein) failed to make out any case for interference with

the judgment of the learned Single Judge passed on 11th April, 2002.

5.    Mr. Gupta, counsel on behalf of applicant contends that the objections

to the award were maintainable on the ground that it was procured by fraud.

Counsel relied upon a document styled as a copy of minutes of meeting

dated 24.06.1992 and contended that the MCD had appointed a Committee

to examin the judgment debtor's grievances.         He relied on the final

paragraph of the said document to show that the Committee decided that

the judgment debt or had agreed to pay the contractual amount for the

months April to July 1992 on the assurance by MCD that it would provide

assistance as required within one month.       Counsel contended that this

amounts to novation of contract in terms of Section 62 of the Contract Act

and a material document t was withheld from the scrutiny of the arbitration

proceedings as well as from the Court by the MCD.          It was therefore

contended that the MCD played a fraud which disentitles it to press these

execution proceedings.

6.    One cannot have a quarrel with the proposition that a fraud can be set

up as a valid ground to avoid a decree even co-laterally. Nullity of decree

can be pleaded in execution proceedings (See Kiran Singh Vs. Chaman, AIR

1954 SC 340). Later judgments of the Supreme Court have also confirmed to

this view. The question here is whether the facts alleged of such kind, as to

persuade the Court to delve further into the matter and determine whether

fraud, as alleged, took place.


Ex.P.93/2004                                                           Page 3
 7.    The materials on the file of the Court disclose that the judgment debtor

was   throughout   casual   in   prosecution   of   the   proceedings.   He    was

unrepresented at the time when the award was made;            though served he

was also unrepresented when the matter was finally decided by the Single

Judge.   He filed a belated appeal about three years after the award was

made Rule of the Court. The Division Bench considered his appeal both on

the question of delay as well as on merits and dismissed it. The applicant/

judgment debtor now seeks to agitate the merits by cleverly styling it as

challenge to the basis of the findings and order making it as Rule of Court as

having been procured by fraud.

8.    Learned counsel for the applicant was unable to point out as to when

the copy of minutes of meeting, sought to be relied upon, was secured by

the judgment debtor.      No particulars in this regard      have pleaded; the

averments are conspicuously vague and unspecific.

9.    The ground for fraud, particularly when it relates to legal proceedings,

pre-supposes an exacting standard which the litigant alleging, as to specify.

In this case having regard to the pleadings in the application, the Court is

unpersuaded that any of the grounds which would entitle stoppage and/or

dismissal of execution proceedings under Section 47, or for drawing an

inference that the decree was a nullity - the only ground on which execution

can be avoided can exist. The pleadings are vague, materials are lacking

and the requirements of having to specifically over material particulars have

not been complied with.


Ex.P.93/2004                                                                  Page 4
 10.   In view of the above, this Court is of opinion that the application is

unmerited; it is accordingly dismissed.

EA No.351/2004

      No further orders are required to be passed in the present application

as the same has become infructuous in view of the order passed today in EA

No.323/2007.

Ex. P. 93/2004

      The judgment debtor is directed to file an affidavit within four weeks

disclosing his assets and banks accounts with relevant particulars.

      List on 4th November, 2008.




                                               S. RAVINDRA BHAT, J.

AUGUST 18, 2008 mb

Ex.P.93/2004 Page 5