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2014 Supreme(UK) 331
UTTARAKHAND HIGH COURT
Hon'ble Mr. Justice Servesh Kumar Gupta
Civil Revision No. 34 of 2012
O.N.G.C. TEL BHAWAN, DEHRADUN – Revisionist
Versus
M/S. GOYEL TRADERS & CONTRACTORS & ANR. – Respondents
Decided on : 05.11.2014
For the Revisionist :Mr. S.K. Jain, Sr. Adv., assisted by Mr. Balvinder Singh, Advocate
For the Respondent No. 1: Mr. V.K. Kohli, Sr. Adv., assisted by Mr. I.P. Kohli, Adv.
Headnote:Civil Revision — Limitation period — If the judgment debtor prefers an appeal and if the same is not even admitted for hearing or it is not decided on merits — Then the decree holder is at liberty to execute his decree if there is no stay granted by the Appellate Court — If he chooses not to execute the decree and waits till the appeal is adjudicated, either on merits or otherwise — Then such wait will not debar him from executing his decree — And the period of limitation will be reckoned from the date when the appeal is decided on merits or otherwise by the superior Court. (Para 14)
nhokuh la’kks/ku & ifjlhek vof/k & vxj ,d judgment debtor vihy djrk gS tks fd vHkh lquok;h ds fy, nkf[ky ugha djh xbZ Fkh ;k xq.kkxq.k ij fu.khZr ugha Fkh & rc fMØh /kkjd viuh fMØh ds fu”iknu ds fy, Lora= gksrk gS vxj vihyh; U;k;ky; }kjk LFkxu dk vuqnku ugha fd;k x;k gks & vxj fMØh/kkjd fMØh fu”iknu ugha pqurk gS vkSj vihy ds xq.kkxq.k ij ;k vU;Fkk U;k; fu.kZ;u dh izrh{kk djrk gS rc dfFkr izrh{kk mls fMØh ds fu”iknu ls oafpr ugha djrh & vkSj ifjlhek vof/k ml frfFk ls laxf.kr gksxh tc vihy mPprj U;k;ky; }kjk xq.kkxq.k ij ;k vU;Fkk fu.khZr gksA ¼izLrj 14½
Hon’ble Servesh Kumar Gupta, J.
Having heard the learned Senior Counsel for both the parties, what this Court feels is that the revision has been preferred mainly for two reasons; the first is that the Award dated 15.2.1988 was never made the Rule of the Court, much less the decree, so it was not executable; the second is that in any case, the Execution Case No.4 of 2009, launched by the opposite party M/s Goyal Traders & Contractors, was barred by limitation making the order dated 04.05.1990 not executable.
2. This Court has rendered the extensive hearing to learned counsel for both the parties.
3. Brief facts, sans unnecessary details, are that there was an Arbitration Agreement dated 17.8.1981 entered into between the parties. The work was completed by the Contractor on 30.9.1984, but somehow, the dispute arose regarding the assessment of the work and payment thereto. So, as per the terms of agreement, the Arbitrator was appointed, who rendered the Award on dated 15.2.1988 to the tune of Rs.6.90 lakh plus to be payable by the ONGC to the Contractor. Before such award could be made the Rule of the Court, much less filing of the same in the Court itself, ONGC paid the amount of Rs.6.68 lakh plus deducting the amount of income tax as was entailed in the Award itself and that payment was received by M/s Goyal Traders. After receiving such amount, M/s Goyal Traders could notice that the Claim no.6 of the Award, though was allowed in full, but it was somewhat, by clerical mistake, written as Rs.864.42 by the Arbitrator while the claim was for Rs.20,864.42. So, the respondent-M/s Goyal Traders moved an application in the Trial Court which later on was got registered as O.S. No.133 of 1988, wherein the following prayers were made by M/s Goyal Traders: -
A. “That the arbitrator-opposite party no.2 be directed to file in Court the award or a signed copy thereof with full record of arbitration proceedings and all documents filed and framed by the parties to the arbitration.
B. Further proceedings be taken according to law and judgment be pronounced according to the Award and the Award be made Rule of the Court.
C. Pendente lite and future interest on the amount awarded to the applicant at the prevailing market rate of 18% p.a. be also awarded to the applicant till date of realization.
D. Full costs of this case be awarded to the applicant.
E. Any other and further orders which the learned Court deems fit.”
4. This application was vehemently resisted by the ONGC but the same was allowed on 04.05.1990 with the directions that in Claim No.6 of such Award, Rs.864.42 should be considered to be modified to the tune of Rs.26,864.42 (mistakenly for Rs.20,864.42).
5. Revisionist-ONGC filed an appeal against such order dated 04.05.1990 before the Allahabad High Court, which, with the passage of time, was transferred to Uttarakhand High Court, and on 12.8.2004, when such appeal came up for hearing before the Division Bench of this Court, learned counsel for the O.N.G.C. made the statement (so recorded by the Court) that the appeal had been rendered infructuous, so, the same was dismissed as such.
6. After dismissal of such appeal, the order dated 04.05.1990 became final. So, M/s Goyal Traders filed the Execution Case No.4 of 2009 in the Trial Court on 1.7.2009. Revisionist –ONGC filed objections u/s 47 of the Code of Civil Procedure but the same were rejected by the Additional Civil Judge (Senior Division), Dehradun by way of passing the order dated 10.2.2012, which is under challenge in this revision.
7. The argument of learned Senior Counsel for the revisionist-ONGC that the Award was not executable since it was never made the Rule of the Court much less a decree, is not acceptable to this Court for the reason that there was no question of making the whole Award dated 15.2.1988 as the Rule of the Court because the payment had already been made by the ONGC to M/s Goyal Traders even before such Award could be filed in t
