Karnataka High Court
M/S Tpc Techno Power Corporation ... vs M/S Continental Engineering on 5 July, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION No. 12470 OF 2022 (GM-CPC)
BETWEEN:
M/S TPC TECHNO POWER CORPORATION LLP
NO.342B, 9TH CROSS, 4TH PHASE,
PEENYA INDUSTRIAL AREA,
BENGALURU 560058,
REPRESENTED BY ITS PARTNER
M/S SKILL TECH ENGINEERS AND
CONTRACTORS PVT LTD,
A LIMITED LIABILITY PARTNERSHIP,
BY ITS DESIGNATED PARTNER.
PETITIONER
(BY SRI.NAVEEN G.S, ADVOCATE)
AND:
M/S CONTINENTAL ENGINEERING
CORPORATION, FLAT NO 211,
A PROPRIETORSHIP CONCERN,
POCKET A/3, SECTOR 7 ROHINI,
NEW DELHI 110085.
ALSO AT
7TH FLOOR, TOWER B,
SIGNATURE TOWERS,
SECTOR 29, NH 8, GURGAON 122002.
RESPONDENT
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA, PRAYING TO QUASH OR
SET ASIDE THE ORDER DATED 21.04.2022 U/O 21 RULE 26
AND SECTION 47 OF CPC 1908 IN EXECUTION PETITION
NO.1976/2017 ON THE FILE OF THE 69TH ADDL. CITY CIVIL
JUDGE (CCH-70) AT BENGALURU PRODUCED AT ANNX-F AS
WELL AS THE CRYPTIC ORDER OF ALLOWING THE APPLICATION
UNDER ORDER XXI RULE 22 DATED 21.04.2022 WHICH FORMS
THE PART OF THE ORDER SHEET PRODUCED AT ANNX-G AND
ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the
petitioner/Judgment Debtor against the common order
dated 21-04-2022 passed by the Executing Court in
Execution Petition No.1976/2017 on an application
filed under Order 21 Rule 26 read with Section 151 of
CPC and also on an application filed under Section 47
of CPC.
2. The captioned writ petition assailing the
order under Section 47 CPC is not maintainable.
Petitioner cannot approach and knock the doors of
Writ Court under Article 227. He has a efficacious
remedy under Section 115 of CPC and therefore, writ
petition is dismissed insofar as order dated 21-4-2022
passed on an application filed under Section 47 of
CPC.
3. In the event, petitioner files a revision petition
within a period of four weeks from the date of receipt
of the order copy, petitioner is entitled for the benefit
under Article 14 of Limitation Act.
4. Insofar as, order on an application filed under
order 21 Rule 26 read with Section 151 CPC is
concerned, this Court is of the view that the grounds
urged in the writ petition does not displace the
conclusion and reasons assigned by the Executing
Court while rejecting the application filed under order
21 Rule 26. If the arbitral award has attained finality
and if there is no challenge to the said arbitral award,
the Judgment Debtor cannot resist execution
proceedings by seeking stay of the proceedings.
5. If the application filed by present petitioner
under Section 47 of CPC is adjudicated and rejected,
then it is well within the jurisdiction of Executing Court
to proceed and permit Decree Holder to execute the
arbitral award which is in his favour. Therefore, I do
not find any error in rejecting the application filed
under order 21 Rule 26 CPC. If the arbitral award has
attained finality, Decree Holder is entitled to proceed
and execute the arbitral award in accordance with law.
6. The present petitioner/Judgment Debtor has
also questioned the order of the Executing Court
passed on an application filed under Order 21 Rule 22
CPC, wherein the Executing Court has proceeded to
issue attachment warrant of moveable against
Judgment Debtor. The grievance of the petitioner is
that, he was not heard in the matter before issuing
attachment warrant.
7. Based on arbitral award, Execution Petition
is filed in the year 2017 which is within two years.
Therefore, there is no mandate to notify Judgment
Debtor before issuing attachment warrant.
Petitioner's grievance is that, he is not furnished with
the arbitral award. His contention is that, the arbitral
award is secured by respondent/Decree Holder by
playing fraud on the Arbitrator. He would however
point out that the arbitral award which is furnished
before the Executing Court is incomplete and
therefore, the Execution proceedings are not at all
maintainable.
8. All these disputed questions cannot be
examined and there cannot be any roving enquiry in
regard to validity of the arbitral award and such a
recourse is not available in writ jurisdiction and cannot
be exercised under Article 226 of Constitution of
India.
9. With the above observations, the writ petition
is dismissed.
Sd/-
JUDGE
tsn*
