RAJESH UPADHYAY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) This Miscellaneous Appeal has been filed for setting aside the order dtd. 14/1/2016 passed by learned Sub-Judge- VI, Chapra in Misc. Case No.04 of 2006 whereby and whereunder the learned Sub-Judge-VI has allowed the Misc. Case filed under Order XXXI Rule 90 and Sec. 47 of the Code of Civil Procedure. By the impugned order the learned court below has been pleased to set aside the auction sale held in Execution Case No.2 of 2001 on 17/12/2002. A perusal of the impugned order would show that this case has a chequered history. One Bhukhal Upadhyay was a contractor of Building Construction Department. For certain works done by him for the Department he claimed a sum of Rs.3,15,714.00 as outstanding amount. In terms of the arbitration clause present in the agreement an arbitration proceeding was conducted and the award of the arbitrator was filed in the court in accordance with Sec. 14 of the Arbitration Act, 1940. The arbitration award was made rule of the court. In the first round of battle, the State of Bihar challenged the judgment of the learned court below making the award a rule of the court and succeeded in getting the matter remanded to the court for considering the objection of the State. On remand, the objection of the State was considered but once again the learned court below made the award a rule of court. In this manner, the court granted a decree in favour of the contractor Bhukhal Upadhyay for a sum of Rs.3,15,714.00. He filed an Execution Case No.2/2001 and in the said execution case, in order to satisfy the decree all the buildings of the Department i.e. office of the Executive Engineer, residence of Superintending Engineer, Technical Adviser, Executive Engineer and Driver have been auction sold for Rs.17,04,161.00.

(3.) The auction sale was given effect to by way of delivery of possession which was confirmed twice on 16/5/2003 and 16/7/2004. Under these circumstances, the present application for setting aside the auction sale was filed under Order XXXI Rule 90 read with Sec. 47 and 151 of the Code of Civil Procedure.