Allowed

Magma Sarachi Finance Limited v. Sanjay Kumar Sahu

Chhattisgarh HC11 Jan 2024CR/134/2016

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed a revision against an executing court order refusing to enforce an arbitral award. The court held that the executing court exceeded jurisdiction by relying on public policy to refuse execution when the award was unchallenged under the Arbitration and Conciliation Act, relying on Cholamandlam and Supreme Court precedents.

What did the court decide?

Impugned order dated 30.07.2016 set aside; execution application restored to District Judge, Bemetra for execution of the award dated 05.03.2008.

Magma Sarachi Finance Limited Vs Sanjay Kumar… — Execution and Attachment | Chhattisgarh HC (2024)

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[CR-134-2016]

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 134 of 20 16

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Magma Sarachi Finance Limited, through its Assistant Legal Manager, Varun Dubey, Son of Shri R.K. Dubey, aged about 36 years, Resident of Rajendra Nagar Chowk, Kirti Comlplex, Bilaspur Civil and District Bilaspur (Chhattisgarh)

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---- Applicant

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Versus

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A. Sanjay Kumar Sahu, Son of Bhuvneshwar Prasad, aged about 30 years,

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B. Bhuvneshwar Prasad Sahu, Son of Aswa Sahu, aged about 55 years,

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[Both Resident of Ward No.04, House No.80, Village Jhiriya, Post Chandnu, Tehsil and District Bemetara (Chhattisgarh)]

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---- Respondents

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For applicant : Mr. Amit Soni, Advocate on behalf of Mr. Sunil Otwani, Advocate For respondents : None though served.

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SB: Hon'ble Shri Justice Sanjay K. Agrawal Order On Board

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12. 01.2024

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1. Heard.

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2. Learned counsel for the applicant submits that though the learned Arbitrator has passed an awarded dated 05.03.2008 in favour of the applicant, but the executing Court i.e. District Judge, Bemetra by impugned order dated 30.07.2016 has refused to execute the said award holding the same to be against the public policy, whereas the learned District Judge could not have gone beyond the award passed by the learned Arbitrator and, therefore, in light of decision of this Court in the matter of Cholamandlam Investment and Finance Co. Ltd. v.

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Page 2 of 4

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Narmada Chandrakar and others1 the same is liable to be set aside.

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3. I have heard learned counsel for the applicant, considered his submissions and perused the material available on record with utmost circumspection.

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4. This Court in the matter of Cholamandlam Investment and Finance Co. Ltd. (supra) held in Paras-21 to 24 as under:

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“21. In the matter of Shivshankar Gurgar Vs. Dilip 2 the Supreme Court has held that the Executing Court has no jurisdiction to modify a decree. It must execute the decree as it is. It was observed as under:-

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“13.2 In our opinion, the order dated 23.11.2005 virtually amounts to the modification of the decree and is without jurisdiction on the part of the executing court, therefore, a nullity. It is a settled principle of law that the executing court cannot go beyond the decree. It has no jurisdiction to modify a decree. It must execute the decree as it is. This Court in Deepa Bhargava v. Mahesh Bhargava³ held thus:-

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“9. There is no doubt or dispute as regards interpretation or application of the said consent terms. It is also not in dispute that the respondent judgmentdebtors did not act in terms thereof. An executing court, it is well known, cannot go behind the decree. It has no jurisdiction to modify a decree. It must execute the decree as it is....”

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It is well settled that such a void order can create neither legal rights nor obligations. Therefore, the appellant cannot be denied his right to recover possession of the property in dispute on the ground that he did not choose to challenge such a void order.”

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1 WP (227) No.626 of 2016, order dated 01.12.2016

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2 (2014) 2 SCC 465

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3 (2009) 2 SCC 294

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Page 3 of 4

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[CR-134-2016]

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Thus, in the aforesaid judgments legal view has been crystallized by the Supreme Court that the Executing Court cannot go beyond the decree in absence of challenge to the decree in appropriate proceeding and such a question that decree is a nullity cannot be raised and decree is binding between the parties.

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In the light of law laid down & noticed hereinabove, if the facts of the present case are examined, it is quite vivid that the Executing Court in the instant case has travelled beyond the award as the award passed has not been challenged by the respondents by filing an application under Section 34 of the AC Act and award passed by the arbitrator has become final by virtue of provision contained in Section 35 of the AC Act & in absence of challenge, the only option available to the Executing Court was to execute the award as it is in accordance with law. The Executing Court has exceeded its jurisdiction by setting aside the award and further committed illegality in rejecting the application under Section 151 of the CPC.

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Accordingly, the order impugned is set aside. Execution application filed by the petitioner is restored to the file of the said Court for execution of the award in accordance with law. The parties are directed to appear before the Executing Court on 5.1.2017. Record be sent back forthwith.”

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5. Admittedly, by way of impugned order dated 30.07.2006, the executing Court i.e. District Judge, Bemetra has refused to execute the award dated 05.03.2008 solely on the ground that the same is contrary to the public policy, however, the learned District Judge while considering the application of the applicant herein filed under Section 36 of the Arbitration and Conciliation Act, 1996 read with Order 21 Rule 10 of CPC, for execution of the award, ought not to have gone beyond the award dated 05.03.2008, which is contrary to law.

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6. Accordingly, the impugned order dated 30.07.2006 is set aside.

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The matter is remitted back to learned District Judge, Bemetra for consideration on applicant’s application for execution of award afresh and for execution of the award dated 05.03.2008 in accordance with law.

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7. The instant revision is allowed to the extent indicated herein above. No cost.

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Sd/- (Sanjay K. Agrawal) Judge

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s@if

Magma Sarachi Finance Limited v. Sanjay Kumar Sahu

Case brief

What is this about?

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Magma Sarachi Finance Limited v. Sanjay Kumar Sahu

Case brief

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