1983 Supreme(MP) 751

IN THE HIGH COURT OF MADHYA PRADESH
G.P. Singh, J.
Paraschand Khariwal - Applicant
Vs.
State of M.P. - Respondent
C. R. No. 23 of 1981 (I)
Decided On : 30-06-1983

Headnote:(1) Civil Procedure Code, 1908 – S. 47 and O. 26, R. 12 – decree on award passed and put to execution – Court cannot go behind the decree – no matter out side decree can be examined – provisions under O. 26, R. 12 not applicable.

       (2) Civil Procedure Code, 1908 – S. 115 – revision under – executability of decree not challenged in execution Court – point cannot be raised in revision.

        Short Note

       1. The applicant made an application for making the award a rule of the Court. It is this application, which was registered as Civil Case No. 633 of 1977. The Court negatived all the objections raised to the award by the State Government and passed the following decree :

       "It is ordered and decreed that the award dated 18 – 6 – 1975 passed by Shri S.C. Sharma, Arbitrator be made a rule of the Court. Non – applicants No. 1 and 2, respectively, State of M.P. and Executive Engineer, Public Health (Engg.) Department, Division Indore are directed that the rates of P. W. D., C.S.R. of 1 – 5 – 1972 are applicable to the agreement No. 28 of 72 – 73 for the work of construction of barrage across Kshipra Dewas Water Supply Scheme drawn between Executive Engineer, Public Health, Division Indore and the contractor Shri P.S. Khariwal of Indore (Ex. A – 1).

       It is further ordered and decreed that the so – called bill of contractor should be rectified by adopting the rates of PWD CSR of 1 – 5 – 1972. The amount found due to the contractor Shri P. S. Khariwal, Indore of the above work by adopting the rates of the PWD CSR of 1 – 5 – 72 should be paid to the said contractor with interest at the rate of 12% per annum from the date of this decree till the amount is paid to him. Pleader's fees according to schedule, if certified. N. A. No.1 and 2 will bear the costs of applicant."

       2. It is this decree that was put into execution by the decree – holder applicant.

       3. At one stage the State Government took the objection that payment has been made, which objection was over – ruled. A Commissioner was later on appointed in respect of the correctness of the bill. The Commissioner reported in favour of the applicant. The another application was made by the State for appointment of a Commissioner to determine the price of cement and the amount of hire charges of machinery which the applicant according to State Government was liable to pay in respect of the same work. It is this application for appointment of Commissioner which has been allowed by the order under revision.

       4. Held : The decree, which is being executed does not refer to the claims which have been raised by the State Government against the applicant in execution proceedings and for which the Commissioner has been appointed. The inquiry as to the price of cement as also relating to hire charges is outside the scope of the decree, learned counsel appearing for the State Government relied upon O. 26, R. 12, but this is clearly not applicable. The Executing Court cannot go beyond the scope of the decree and enquire into and adjudicate on matters which are not covered by the decree. Further it is conceded that the claim of the Government relating to price of cement and hire charges is pending for adjudication before an Arbitrator. The Executing Court was thus clearly not competent to order appointment of a Commissioner to inquire into the claim made by the State Government.

       5. The next question is about executability of the decree. One view of the decree could have been that it is merely a declaratory decree and is not executable. But no such objection was raised before the Executing Court. There is no dispute at least now about the items contained in the final bill, which is referred to in the award and the decree. The amount due in accordance with the rates of 1 – 5 – 1972 has already been deposited in the Court by the State Government and a part of that amount has also been withdrawn by the applicant. The words "the amount found due to the contractor" by adopting the rates of 1 – 5 – 1972 as they occur in the decree and the award can refer to the amount due on the bill, which is directed to be corrected by adopting the rates of 1 – 5 – 1972. It is on this basis that the decree was put into execution and the State has deposited the amount payable under the bill. It is now too late to say that the decree is not executable. Revision allowed.