LexBHAWARLAL BHANDARI versus M/S UNIVERSAL HEAVY MECHANICAL LIFTING ENTERPRISES
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- - BHA WARLAL BHANDARI A v. MIS UNIV_ERSAL HEAVY MECHANICAL LIFTING ENTERPRISES DECEMBER 4, 1998 [S.B. MAJMUDAR AND M. JAGANNADHA RAO, JJ.] Civil Procedure Code, 1908-Section 47-Jurisdiction of executing court to go beyond the decree-Repayment of loan-Dispute-Arbitration-- Award-Execution proceedings-Objection that decree a nullity as award was passed beyond the period of limitation-Objection overruled by executing C court-However, Division Bench of High Court remanding the matter for re- examination-On appeal, held, executing court cannot go beyond the decree unless it is passed by a court without jurisdiction-Decree passed beyond the period of limitation can be corrected in appellate proceedings-Thus High Court not justified in remanding the matter to execution court. Constitution of India, I 950-Article 136-Special leave jurisdiction-- Interference under-Principles of equity-Applicability of D The appellant granted a short term loan to the respondent firm. A dispute arose between the parties regarding the quantum of interest and the E time for repayment of loan. The dispute was referred to arbitration. The arbitrator after hearing the parties passed an award on 17.4.1985. First instalment as per award was paid by the respondent. The arbitrator filed the award in the Court on 23.3.1989 for making it a rule of the Court. Though notice was served, the respondent did not file any objection to the award. Thus, an ex-parte order was passed by the Court making the award rule of F the Court. On non-compliance of award decree, execution proceedings were initiated by the appellant. In the said proceedings, the respondent- judgment debtor raised an objection that the decree was a nullity as the award was filed by the arbitrator suo motu in the court after four years which was beyond the period of limitation. The objections were overruled by the executing G court. However, on appeal, Division Bench of the High Court held that the question required re-examination by the executing court and remanded the proceedings. Aggrieved, the appellant has preferred the present appeal. The appellant contended that executing court had no jurisdiction to go behind the decree, that the question of law and fact and even assuming that H . 331 332 SUPREME COURT REPORTS (1998] SUPP. 3 S.C.R. A it was wrongly decided by the court passing the decree in terms of the award, that would not make the decree a nullity or without jurisdiction and hence the remand order passed by the Division Bench of the High Court was clearly unsustainable and amounted to usurpation of jurisdiction which in execution proceedings the court had not got. B The contention of the respondent-judgment debtor was that after the arbitration proceedings were over no attempt was made by the appeUant to get the award made rule of the court and after 4 years the arbitrator filed the award only at the instance of the appellant and such late filing of award by the arbitrator could not have been made the subject matter of proceedings c before the court which was clearly time barred and hence the award decree was a nullity; appellant had obtained a mock award by committing fraud on respondent as well as on the Court; in exercise of its jurisdiction under Article 136 of the Constitution this Court may not interfere with th1e order passed by the Division Bench of High Court which is a remand order and which meets the ends of justice inasmuch as the correct legal positiion can D be found out by the trial court after remand. Allowing the appeals, this Court HELD : I.I. The executing court cannot go behind the decree unless it is shown that it was passed by a court having inherent lack of jurisdiction, E which would make it a nullity. [338-A) 1.2. In the instant case the award decree on the face of it was not shown to be without jurisdiction. Thus, the High Court was not justified in remanding the matter to the execution court for consideration. [339-B; 340-D) F 2. The award was filed in the Court by the arbitrator and the court proceeded to deal with the question whether the award should be made rule of the Court or not. Notice was issued by the Court to the respondent to show cause as to why this award should not be made rule of the Court. Despite such service of notice, respondent did not think it fit to contest the proc1~ings G nor did it file any objection under Section 30 of the Arbitration Act, 1940. In the result, t
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