RAM KUMAR PATHAK Vs. KRISHNA NARAIN PATHAK

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India is directed against an order passed by the District Judge, Kanpur Nagar, dated 21st April, 2004 in Civil Revision No. 116 of 2003, copy whereof is annexed as Annexure-11 to the writ petition, whereby the revision filed by the petitioner has been dismissed and the order passed by the trial court is maintained.

(2.) The facts leading to the filing of the revision out of which the present writ petition has arisen are that Krishna Narain Pathak filed an application purported to be an application under Order IX. Rule 13, read with Section 151 of the Code of Civil Procedure with the prayer that the award of the arbitrator in Case No. 104/70 of 1998 dated 15th April, 1999. He has also filed an application that the award which has been obtained by practicing fraud and concealment of fact out of which the so called dispute was got referred to the Arbitrator, which ultimately resulted into award, which has subsequently been made rule of the Court, was wholly without jurisdiction and was obtained, as already stated, by practicing fraud and was a nullity. The application further states that for the first time, applicant acquired knowledge with regard to the aforesaid fraud only on 5th May, 2001, he therefore filed an application for recall of the order dated 15th April, 1999 by which the award has been made rule of the Court. The objection has been filed on behalf of Ram Kumar Pathak that applicant Krishna Narain Pathak has nothing to do with the controversy in dispute and he was not a party to the proceedings, he has made incorrect statement. The award has already been made the rule of the Court and pursuant to the aforesaid rule of the Court, the decree has been executed. He further states that he has not played any fraud, he, therefore contested the application filed by Krishna Narain Pathak under Order IX, Rule 13, read with Section 151 of the Code of Civil Procedure and prayed that the said application may be rejected.

(3.) The admitted fact as emerged from the pleadings of the parties as discussed by the trial court as well as the revisional court that the Arbitration Act, 1940, has been repealed by Arbitration Act, 1996, with effect from 25th January, 1996, when the Arbitration Act, 1996, which shall hereinafter refer to as 'new Act', has come into force, whereas the application out of which the matter was referred to the Arbitrator and the Arbitrator gave the award which has become subsequently the rule of the Court, was filed under the provision of the Arbitration Act, 1940, which shall hereinafter refer to as 'old Act' stood repealed. It is also stated that the new Act was enforced on 24th January, 1996 and till 25th January, 1996, the old Act was enforced and in view of the transitory provision of the new Act only those proceedings were saved, which were initiated before coming into force of the new Act, i.e., Arbitration Act, 1996, as already stated that the new Act came into force on 25th January, 1996, therefore the application pursuant to which the matter was referred to the Arbitrator, which was filed on 25th October, 1996 and the award of the Arbitrator and consequent rule of the Court were all proceedings, which were wholly without jurisdiction, apart from the same has been obtained by practicing fraud.