Delhi High Court
Brij Lal & Sons vs Union Of India on 14 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th August, 2018.
+ EX.F.A. 21/2016 & CM No.20158/2017 (for direction)
BRIJ LAL & SONS ..... Appellant
Through: Mr. Tilak Raj Gogia, partner of
appellant.
Versus
UNION OF INDIA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Execution First Appeal under Order XXI Rule 58 of the Code of
Civil Procedure, 1908 (CPC) impugns the order [dated 1 st June, 2016 in
Execution Petition No.18/2014 of the Court of Additional District Judge-01
(South-East)] of adjourning sine die the Execution Petition filed by the
appellant.
2. This appeal came up first before this Court on 19 th August, 2016,
when Executing Court's record was requisitioned. Vide subsequent order
dated 24th January, 2017, notice of the appeal was ordered to be issued. Ms.
Sakshi Popli, Advocate for the respondent Union of India (UOI) has been
appearing but does not appear today.
3. A perusal of the order sheet shows that none appeared for the
respondent UOI on the last date of hearing i.e. 7th May, 2018.
4. The need to await the counsel for the respondent UOI any further is
not felt.
EX.F.A. 21/2016 Page 1 of 4
5. The records have been perused and Mr. Tilak Raj Gogia, partner of
the appellant who has been pursuing this appeal in person has been heard.
6. The appellant filed Execution Petition No.18/2014 supra seeking
execution of an arbitral award for recovery of money by the appellant from
the respondent UOI. On 1st June, 2016, while it was the contention of the
appellant before the Executing Court that monies under the arbitral award
were due from the respondent UOI to the appellant, it was the contention of
the respondent UOI that the entire award/decretal amount had been paid.
The learned Additional District Judge, acting as the Executing Court,
instead of adjudicating, whether the decree stood satisfied or as to how
much amount was due under the arbitral award having force of decree, on
the appellant during the course of arguments having submitted that he had
already filed an 'appeal' against the arbitral award, adjourned the execution
proceedings sine die.
7. It is the contention of the appellant that the same was no ground for
adjourning sine die the execution proceedings. It is pleaded that in the
'appeal' against the arbitral award (probably referring to Section 34 of the
Arbitration and Conciliation Act, 1996 proceedings against the award), the
appellant is seeking enhancement of the amount due to him.
8. Though the counsel for the respondent UOI has chosen not to appear
but has filed a reply to this appeal which has been perused. In the said
reply, it is pleaded (i) that the entire awarded amount has been paid to the
appellant; (ii) that the appellant had challenged the said arbitral award and
the said challenge was dismissed; (iii) that the appellant filed an appeal
before this Court and vide order in which appeal, the objections of the
EX.F.A. 21/2016 Page 2 of 4
appellant to the arbitral award were ordered to be decided afresh; (iv) that
the Additional District Judge set aside the arbitral award and another
Arbitrator was appointed; (v) that the said Arbitrator published his award;
(vi) that the appellant again preferred objections against the arbitral award
and in which yet again a direction was issued to the Arbitrator for decision
afresh; (vii) that the Arbitrator again published his award and the amount
which the respondent UOI was ordered to pay thereunder has already been
paid; and, (viii) that the appellant has again challenged the subject award.
9. Mr. Tilak Raj Gogia, on enquiry, as to what happened to the "appeal
against the award", states that the same is still pending.
10. As would be evident, there is nothing in the reply of the respondent
UOI which justifies the order of adjourning sine die the execution
proceedings.
11. It was for the learned Additional District Judge acting as the
Executing Court to determine, whether the entire amount under the award
had been paid as claimed by the respondent UOI or had not been paid as
informed by the appellant and if the entire amount had not been paid,
whether pendency of objections affected the recovery by the appellant in
execution of the balance amount, if any due. The learned Additional
District Judge has indeed erred in, without giving any reason, depriving the
appellant of the benefit of the arbitral award having the force of decree in
his favour, awaiting the decision of the objections against the award,
without even recording that in the said objections, there was a possibility of
the awarded amount being not recoverable by the appellant.
EX.F.A. 21/2016 Page 3 of 4
12. Before parting, I may however record that, in my opinion, this appeal
did not lie neither under Order XXI Rule 58 of the CPC nor under any other
provision. However, since this appeal was entertained by this Court and
has now been pending for the last two years and in any case, the remedy of
appeal under Article 227 of the Constitution of India would have been
available to the appellant against the impugned order, it is not deemed
appropriate to dismiss/reject the appeal on this ground.
13. The appeal thus succeeds and is allowed and the impugned order
dated 1st June, 2016 is set aside.
14. The learned Additional District Judge-01 (South-East) is requested to
proceed with the execution as per the merits thereof.
15. The Executing Court file requisitioned in this Court be returned
forthwith.
16. The parties to appear before the Court of Additional District Judge-
01 (South-East), Saket Courts, New Delhi on 25th September, 2018.
RAJIV SAHAI ENDLAW, J.
AUGUST 14, 2018
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