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2021 Supreme(Raj) 1276
IN THE HIGH COURT OF RAJASTHAN PRINCIPAL BENCH AT JODHPUR
PUSHPENDRA SINGH BHATI, J.
Bhagwati Construction Company, Through Its Partner Bhagwati Prasad - Petitioner
Versus
Union of India, through Commander Works Engineer - Respondent
S.B. Civil Writ Petition No. 14494, 14363 of 2019
Decided On : 10-11-2021
Advocate Appeared:
For the Petitioners: Mr. S.L. Jain
For the Respondents: Mr. B.P. Bohra, Senior Panel Counsel for Union of India.
Headnote:
Constitution of India, 1950 – Article 11, 21 – Civil Procedure Code, 1908 – Section 51 – Order 21 – Rule 37 – Arbitration and Conciliation Act, 1996 – Writ petitions have been preferred claiming reliefs – Petitioner submits that an award was passed under Arbitration and Conciliation Act, 1996 against present petitioner for a sum of along with 12% interest, for which execution petitions were moved by non-petitioner – Held, Court also takes note of the facts, as noticed in impugned orders passed by learned Executing Court – This Court further takes note of observations made by learned Executing Court in impugned orders, that petitioner does have means and capacity to pay, which fact is not reflected from the record – On a perusal of list of properties, as above, and observations made by learned trial court in its order it is clear that petitioner does not have any means or capacity to pay – Petitions disposed of.
JUDGMENT :
PUSHPENDRA SINGH BHATI, J.
In wake of second surge in the COVID-19 cases, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.
2. These writ petitions have been preferred claiming the following reliefs:
CWP No. 14494/2019:
“A) Quash and set aside the impugned order dated 03.09.2019 (Annexure-6) passed by the Court of Additional District Judge, Suratgarh in Execution Case No. 2/2014 (Annx1) - Union of India v. Bhagwati Construction Company; and
(B) The application filed by the non-petitioner dated before the Court of Additional District Judge, Suratgarh in Execution Case No. 2/2014 (Annx1) - Union of India v. Bhagwati Construction Company be dismissed; and
(C) Any other appropriate order or relief which this Hon'ble Court may deem just and proper in the facts and circumstances of this case may kindly also be passed in favour of the humble petitioner.”
CWP No. 14363/2019:
“A) Quash and set aside the impugned order dated 03.09.2019 (Annexure-6) passed by the Court of Additional District Judge, Suratgarh in Execution Case No. 1/2014 - Union of India v. Bhagwati Construction Company; and
(B) The application filed by the non-petitioner dated before the Court of Additional District Judge, Suratgarh in Execution Case No. 1/2014 - Union of India v. Bhagwati Construction Company be dismissed; and
(C) Any other appropriate order or relief which this Hon'ble Court may deem just and proper in the facts and circumstances of this case may kindly also be passed in favour of the humble petitioner.”
3. Learned counsel for the petitioner submits that an award dated 17.12.1999 was passed under the Arbitration and Conciliation Act, 1996 against the present petitioner for a sum of Rs. 2,94,749/- alongwith 12% interest from 29.06.1999, for which the execution petitions were moved by the non-petitioner on 26.05.2000.
4. Learned counsel for the petitioner further submits that thereafter, the learned Executing Court directed the decree-holder to file a list of properties of the judgment-debtor, whereupon on 28.05.2011, the non-petitioner produced a list of agricultural properties only. As per learned counsel, even as per the revenue records, the petitioner is not the owner of the said agricultural properties.
5. Learned counsel for the petitioner also submits that since admittedly, the petitioner is not having any other property, except the agricultural land of which the petitioner is not even the owner, therefore, the impugned orders dated 03.09.2019 passed by the learned Executing Court are illegal, and the same also resulted into civil imprisonment of the petitioner, assuming that it has the means and capacity for making the payment, but it is not doing so.
6. Learned counsel for the petitioner relied upon the precedent law laid down by the Hon'ble Supreme Court in Jolly George Varghese v. The Bank of Cochin, reported in (1980) 2 SCC 360 : AIR 1980 SC 470, relevant portion of which reads as under:
“5. At this stage, we may notice the two provisions. Section 51 runs thus:
51. Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any property;
(c) by arrest and detention in prison;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require.
Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-
(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree-
(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or
(ii) has, after the institution of the
