UNION OF INDIA Vs. BRAJESH KUMAR

JUDGEMENT

(1.) THIS revision under Section 115. C.P.C., by the Union of India through the General Manager, Northern Railway, and others is directed against the order of the IInd Civil Judge (Senior Division), Agra rejecting the preliminary objection of the revisionists-J. D. in execution case.

(2.) THE decree holder put in execution application before the court and the J. D. revisionists filed a preliminary objection for rejecting the application for execution of the decree. THE Judgment-debtors stated in the preliminary objection that the ex parte judgment was obtained by the decree-holder by playing fraud upon the court. It was stated that final payment was made to the decree-holder on 6.5.1985 and a certificate was given by the decree-holder saying that he had no other claim outstanding against the Northern Railway for the work done or for labour or material supplied or on any other account and the payment of the bill shall be final settlement of all claims in respect of work to which/agreement work order No. 74-W/1428/Bills dated 25.2.1982 which relates to the Railways. It was also objected that the execution application was not properly filed, it was false, frivolous and misconceived and was liable to be rejected.

(3.) IT is not disputed that arbitration proceeding was taken before the arbitrator, before whom the plea that the decree-holder received final payment of Rs. 1,38,466.73 in full and final satisfaction without protest was never raised or stated. The decree-holder-respondent stated that the J.D. is estopped from raising the said plea in execution proceedings. The execution court is not to go behind the decree. The award of the arbitrator was placed before the court for making it a rule of the court. There also this plea about final payment in full satisfaction was not raised. The court below found that the suit was filed by the plaintiff under Section 20 of the Arbitration Act for reference to arbitrator after appointing an arbitrator. The J. D. filed written statement there and the arbitrator was appointed on 19.4.1991. Sri Shyam Kishore was appointed as sole arbitrator by the court. After due service of notice, the defendant had appeared on 7.11.1992, prayed for time and the arbitrator proceeded ex parte as the revisionists-J.D. had failed to participate in the proceedings before the arbitrator. The arbitrator had sent notice for delivery of the award and the award was submitted before the court, which was made rule of the court on 4.12.1993 and the defendant did not take part in the proceedings and had not filed any objection. The finding of the court below is that all the proceedings before the arbitrator and the court were in the knowledge of the revisionists. The court below, after considering the submissions of the revisionists and due consideration of the case law referred to in the Judgment impugned, found that since the J.D. had notice of the proceedings before the arbitrator and had appeared also, thereafter had not participated in the proceedings before him and even before the court before making the award as rule of the court. IT was found by the court below that the conduct of the J. D. shows that they had not participated in the proceedings after due notice and information and now it is not open for the revisionists to question the validity of the award. The court below also referred to the submission of the decree-holder that Section 30 of the Arbitration Act provides for limitation for setting aside of the award within 30 days from the date of knowledge. IT is found by the court below that the J. D. revisionists had full knowledge of the arbitration proceedings and the award and the judgment. The application and objection in execution proceedings are highly belated.