Karnataka High Court
The Executive Engineer vs M S Shetty Constructions Co.Pvt ... on 3 August, 2023
Bench: C.M.Poonachapresided Bycmpj
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NC: 2023:KHC-D:8273
CRP No. 100064 of 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
CIVIL REVISION PETITION NO. 100064 OF 2020 (EX-)
BETWEEN:
1. THE EXECUTIVE ENGINEER
KNNL GRBC DV NO. 5
LOKAPUR CAMP KOUJALAGAI
DIST BELAGAVI-591227
2. KARNATAKA NEERAVARI NIGAM LTD.,
REG OFFICE BANGALURU
R/BY MANAGING DIRCTOR
BANGALURU-560001
...PETITIONERS
(BY SRI. S M TONNE.,ADVOCATE)
AND:
Digitally
signed by
SHIVAKUMAR
SHIVAKUMAR HIREMATH M/S SHETTY CONSTRUCTIONS CO.PVT LTD,
HIREMATH Date:
2023.08.08 HUBLI NOW ADARSH NAGAR HUBLI-580009
16:25:20
+0530 R/BY DIRECTOR PRASANNA SHETTY
...RESPONDENT
(BY SRI. V. M. SHEELAVANTH, ADVOCATE)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF THE CPC PRAYING THAT AFTER CALLING FOR THE RECORDS
AND PROCEEDS OF THE CASE THIS HONLBLE COURT TO SET ASIDE
THE ORDER ON IA NO 3 DATED 17.02.2020 PASSED BY THE
LEARNED PRINCIPAL SENIOR CIVIL JUDGE GOKAK IN EP NO 67 OF
2018 BY ALLOWING THIS CIVIL REVISION PETITION WITH COSTS.
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NC: 2023:KHC-D:8273
CRP No. 100064 of 2020
THIS CIVIL REVISION PETITION, COMING ON FOR HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petition is filed being aggrieved by the
order dated 17.02.2020 passed on I.A.No.3 in Execution
Petition No.67/2018 by the Principal Senior Civil Judge,
Gokak.
2. Necessary facts giving rise to the present
petition are that, the respondent filed Execution Petition
No.9/2012 to execute the arbitral award dated
11.10.2006. It is forthcoming from the record that, the
petitioner being aggrieved by the said arbitral award
preferred MFA No.13083/2006, which was dismissed by
this Court vide order dated 15.10.2011 and the petition
filed by the petitioner in SLP No.9415/2012 before the
Hon'ble Supreme Court was also dismissed.
3. The petitioners filed objections in Execution
Petition No.9/2012 and also made a deposit of
₹1,75,53,952/- and ₹1,28,36,034/- on 26.09.2012 and
09.10.2017, respectively and thereafter the executing
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CRP No. 100064 of 2020
Court ordered the petitioner to pay a sum of ₹18,73,742/-
vide order dated 31.07.2018. Subsequent to the same, the
execution petition was dismissed on 15.09.2018 since the
respondent/decree holder did not take further steps.
4. The respondent/decree holder filed Execution
Petition No.67/2018. The petitioner entered appearance in
the said proceedings and also deposited a sum of
₹17,39,960/- which amount has been kept in deposit by the
executing Court. The petitioner has filed objections to the
execution petition and also filed I.A.No.3 under Section
151 of CPC, "not to disburse the amount deposited, to the
decree holder till final hearing of the main petition". The
respondent filed objections to the said application. The
executing Court by impugned order dated 17.02.2020
rejected the application and passed the following order:
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CRP No. 100064 of 2020
"ORDER
I.A. No.3 filed by JDrs U/s. 151 of CPC is hereby
rejected.
The point of limitation raised by Jdrs that the
petition is not maintainable as bared by time is rejected.
Office is directed to disburse the amount deposited
by the JDrs in favour of DHr after thorough identification.
For further steps if any by 24/02/2020."
5. Being aggrieved by the said order, the present
petition has been filed.
6. Counsel for the petitioner assailing the order
passed by the executing court contends that the execution
petition is barred by time, since the earlier execution
petition having been dismissed for non-prosecution and
the subsequent execution petition has been filed after
lapse of more than 12 years. He further submits that,
notwithstanding the contention regarding the limitation,
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CRP No. 100064 of 2020
the petitioner has also filed objections to the main
execution petition and without considering the same, while
dismissing I.A.No.3, the executing Court has also directed
for disbursement of the amount deposited in favour of the
decree holders which ought not to have done without
considering the objection filed by the petitioners to the
main petition. Hence, he seeks for allowing of the petition
and setting aside of the impugned order.
7. Per contra, learned counsel for the respondent,
justifies the order passed by the executing Court and
submits that, the arbitral award dated 11.10.2006 was
challenged by the petitioner before this Court and the
appeal filed by the petitioner was dismissed on 15.10.2011
and the execution petition having been filed on
31.10.2018 is within time. Hence, he seeks for dismissal of
the above petition.
8. I have considered the submissions made by the
learned counsel for the parties and perused the material
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CRP No. 100064 of 2020
available on record. The question that arises for
consideration is,
"Whether the order passed by the executing
Court is liable to be interfered with?"
9. It is not in dispute that, the arbitral award
dated 11.10.2006 was challenged by the petitioner in MFA
No.13083/2006 and the same came to dismissed on
15.11.2011. The Special Leave Petition filed by the
petitioner before the Hon'ble Apex Court was also
dismissed at the admission stage itself. The execution
petition was filed on 31.10.2018.
10. The executing Court relying upon the Judgment
of Hon'ble Supreme Court in the case of Ram Bachan Rai
and others Vs. Ram Udar Rai and others, reported in
2006 SAR (Civil) 497 and noticing that the period of
limitation of 12 years as contemplated under Article 136 of
Limitation Act starts from the final date of dismissal of the
revision petition preferred, has recorded a categorical
finding that the period of limitation to execute the arbitral
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CRP No. 100064 of 2020
award commenced from 15.11.2011, when the appeal filed
by the petitioner was dismissed by this Court and the
execution petition having been filed within a period of 12
years from the said date is well within time. The said
finding recorded by the executing Court is just and proper
and not liable to be interfered with in the present petition.
11. However, the executing Court while holding
that, the execution petition is well within time, has
proceeded to direct for disbursal of the amount deposited
by the petitioner/Judgment debtor in favour of the
respondents/decree holders. The contention put forth by
the learned counsel for the petitioner that, the executing
Court has proceeded to disburse the amount without
considering the objections filed by the petitioners to the
execution petition merits consideration.
12. In view of the same, the portion of the order,
whereunder, the executing Court directed for disbursal of
the amount to the decree holders, is liable to be interfered
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CRP No. 100064 of 2020
with. Accordingly, I answer the question framed for
consideration partly affirmative and pass the following:
ORDER
(i) The petition is partly allowed;
(ii) The order dated 17.02.2020 passed on
I.A.No.3 in E.P.No.67/2018 by the
Principal Senior Civil Judge, Gokak, to the
extent, it rejected I.A.No.3 and also
rejected the contention of limitation raised
by the Judgment debtors as barred by
time, is upheld.
(iii) However, the further direction to disburse
the amount in favour of the decree
holders is set aside.
(iv) The executing Court shall proceed further
in the execution petition in accordance
with law after considering the objections
filed by the petitioners to the main
execution petition.
(v) No costs.
(Sd/-)
JUDGE
Svh/-
