AVIRAJ TRADERS Vs. GUJARAT STATE CO OPERATIVE TRIBUNAL

JUDGEMENT

(1.) The matter has come up for final order to be passed in the Civil Application. This Court on 7.8.1997 granted interim relief in terms of para 7 (b) till next date. Heard the learned counsel for the applicant. In Special Civil Application No. 4929/93 the petitioner has challenged the order of the Gujarat State Co-operative Tribunal dated 8th April, 1993 under which the appeal preferred by the petitioner against the judgment and award passed by the Board of Nominee, Ahmedabad, in Arbitration Suit No. 201/91 on 29th October, 1991 has been confirmed. In the arbitration suit the money decree has been passed against the petitioner. This suit has been filed by the respondent Bank, namely, Suprabhat Sahkari Co-operative Bank Ltd., at Ahmedabad in connection with the dues of the Bank against the petitioner. The bank has extended the facility of overdraft limit to the petitioner and when the amount outstanding in his account was not cleared by the petitioner, the bank has filed the aforesaid suit.

(2.) Special civil application has been admitted. Ad interim relief has not been pressed though in the Special Civil Application prayer has been made for interim relief. In para 8 (c) of the Special Civil Application the petitioner prayed for stay of the operation, execution and implementation of the order or the award in Arbitration Suit No. 2014/88 dated 29th October, 1991. As it is a case of award in a money suit and stay was not granted by this Court, the bank was perfectly legal and justified in its action to file application for execution of the award, and accordingly it filed darkhast No. 51/96 on 25th January, 1996 in the City Civil Court at Ahmedabad. Notice of this darkhast was issued to the petitioner. What the applicant stated is that it could not be served upon it. The applicant filed this Civil Application and prayer has been made therein to quash and set aside the execution proceedings arising out of the judgment and award passed in Arbitration Suit No. 2014/88, and further prayer has been made for stay of the execution proceedings in darkhast No. 51/96. Interim relief has been granted by this Court as stated earlier and the matter has come up for consideration for final order to be passed.

(3.) From the Civil Application I find that the applicant has not accepted the notice issued to him by the City Civil Court at Ahmedabad in darkhast No. 51/96. So the petitioner has not raised any objection against the execution of the award or decree before the executing Court and straight away filed this Civil Application praying for quashing and setting aside the execution proceedings. When the award and judgment in arbitration suit is there, I fail to see any justification in the prayer made for quashing and setting aside of the execution proceedings. The judgment and award in question is executable and it is settled law that mere filing of appeal does not automatically amount to say of the execution of the decree. The same principle can also be conveniently applied to the proceedings under Art. 226 or 227 of the Constitution. In the present case it is true that Special Civil Application has been filed by the petitioner and it has been admitted, but the Court has not granted interim relief. Merely filing of Special Civil Application will not amount to stay of execution of the judgment and award. When the award and judgment is there the holder thereof has all the right to take proceedings for execution thereof and this Court cannot quash and set aside the execution proceedings. Execution proceedings are necessarily proceedings which follow from the decree and until the decree is set aside these proceedings cannot be quashed and set aside. However, in case the decree is set aside finally, then certainly at that time if these proceedings are pending then the same will automatically come to an end, which stage has not reached. Learned counsel for the applicant contended that the award and judgment passed by the Board of Nominee and confirmed by the Tribunal are without jurisdiction. It has further been contended that the judgment and award which has been passed on the ground of compromise made by the advocate is against the interest of the applicant and as such no decree could have been passed by the Board of Nominee. It has next been contended that the applicant is not a member of the Co-operative Society and therefore the Board of Nominee has no jurisdiction to decide the matter. All these questions are to be decided by the Court when the Special Civil Application is taken up for final hearing. Presently I am only concerned with the Civil Application in which prayer has been made for quashing and setting aside of the execution proceedings and for stay of the execution proceedings. So far as the first prayer is concerned, it is wholly misconceived, for the reason that the award and judgment has not been set aside by this Court so far. The second prayer for grant of interim relief also cannot be accepted. It is a case of money decree. Though the provisions of CPC are not strictly applicable to the proceedings under Art. 226/227 of the Constitution of India, the principle analogous to that can conveniently be made applicable to these proceedings. In the matter of grant of interim relief of the nature of staying execution of decree is to be considered with reference to the provisions as contained in Order 39 of the Code of Civil Procedure, 1908.