STATE Vs. UDAYANATH TRIPATHY

JUDGEMENT

(1.) Judgement-debtor is the petitioner against an order rejecting the objection under S.47, Code of Civil Procedure.

(2.) Decree-holder is a works contractor. Dispute having arisen in respect of the work executed by the decree-holder, the same was referred to an Arbitrator. In spite of the claim of about Rs. 23 lakhs by the decree-holder, the Arbitrator awarded Rs. 2,64,955/- only with interest at 10%, from 8-8-1973 to 18-7-78 in his award dated 1-11-1980. Judgement-debtor challenged the same under Sections 30 and 33 of the Arbitration Act. 1940 (for short 'the Act'), while the decree-holder applied for the award to be a rule of the Court. The objection of the judgement-debtor having been rejected the award was made a rule of the Court with costs and a decree was drawn up on 10-4-1981. The judgement-debtor filed an appeal under S.39 of the Act in this Court which was dismissed on 14-7-1981. Although the judgement-debtor contemplated of challenging the order of this Court in the Supreme Court, there is no material in record to indicate that the matter was in fact challenged in that Court.

(3.) On 1-7-1981, the decree-holder filed Execution Case No. 6 of 1981 for realisation of the amount decreed. Although notice was served on the Executive Engineer who was acting on behalf of the State Government, the judgement debtor did not appear on 27-7-1981 to which date the case was posted. The Executing Court, however, fixed the case to 3-8-1981 for the decree-holder to take next step. On 3-8-1981, the learned Government Pleader appeared and prayed for adjournment on the ground of being engaged in a sessions trial. The case was adjourned to 31-8-81 for payment of the decretal dues by the judgement debtor. On that date, the learned Government Pleader prayed for adjournment on the ground that sanction was to be obtained from the State Government. Case was adjourned to 21-9-1981 for payment by the judgement debtor. That day, the judgement-debtor remained silent and the executing Court fixed the case to 23-9-1981 for the decree-holder to take next steps. While the decree-holder submitted on 23-9-1981 that he had already filed the requisites, the judgement-debtor shifted the ground of adjournment to its having taken steps for preferring appeal before the Supreme Court. This was also accepted by the executing Court and the case was adjourned to 21-10-1981 for further orders. On that date, the judgement-debtor remained silent. However, on 28-10-1981, while the decree-holder intimated that the judgement debtor had not filed any appeal, the judgement debtor did not appear but a petition was filed by some Tripathy on behalf of the judgement- debtor making vague statement that the Advocate General had intimated that the documents had been sent to the Law Department for further move and the judgement-debtor was to take further steps after receiving the documents for which adjournment for one month was sought for. The Executing Court rightly rejected the petition and directed the office to check up the steps taken by the decree-holder for attachment. The case was posted to 30-10-1981. On that day, an application with affidavit of the Executive Engineer was filed for adjournment for one month on the ground that steps had been taken to prefer appeal before the Supreme Court for which time had not run out. The Executing Court took a liberal view of the matter and adjourned the case to 27-11-1981.