- (1.) INVEIGHING the orders dated 29.04.2010 and 25.02.2010 passed by the learned Principal District Judge, Chingleput in E.P.No.25 of 2009 and in E.A.No.49 of 2009, in Arbitration Award dated 01.09.2008, these two civil revision petitions, viz., CRP NPD No.1774 of 2010 and CRP NPD No.2623 of 2010 are focused.
(2.) O.A. No.739 of 2009 has been filed for obtaining an order of interim injunction restraining the respondents from in any way executing the arbitration award dated 01.09.2008, pending disposal of the suit O.S.No.228 of 2008 on the file of the learned District Munsif, Maduranthakam. Heard both sides. Compendiously and concisely, the relevant facts, absolutely necessary and germane for the disposal of these two civil revision petitions and O.A. No.739 of 2009 would run thus: a] Indubitably and indisputably, the parties involved in this matter agreed for a consent award to be passed under the Arbitration Act. Whereupon on 01.09.2008 the consent award was passed by the learned Arbitrator concerned. Subsequently, the respondents herein did choose to file the execution petition for executing the award and as of now, the said execution petition is pending in E.P.No.25 of 2009 before the learned Principal District Judge, Chingleput. b] Earlier, the executing court set the revision petitioner herein exparte and also ordered attachment of the immovable property concerned. Subsequently, E.A. was filed to get set aside the exparte order passed in the E.P. and it was allowed; thereafter counter also was filed by the revision petitioner in the E.P. However, the E.A.No.49 of 2009, which was filed for getting the order of attachment raised was dismissed. It appears that the Executing court proceeded with the execution and without serving sale notice in person on the judgment debtors, it is found recorded by the Executing Court as though the sale notice was affixed. c] Being aggrieved by and dissatisfied with such a procedure adopted by the lower authority the revision petitioner herein filed CRP NPD No.1774 of 2010, and as against the dismissal of E.A.No.49 of 2009 in getting the attachment raised, CRP NPD No.2623 of 2010 has been filed. Meanwhile O.A.No.739 of 2009 has been filed invoking Section 9 of the Arbitration Act.
(3.) THE learned senior counsel for the revision petitioner in all the matters, placing reliance on the grounds found set out therein, would develop his argument thus: i] THE consent award passed contains several conditions and unless the respondents herein comply with those conditions, the question of executing the award as a decree would not arise. However, without complying with the conditions, which the respondents herein ought to have complied with, they simply filed the execution petition as against which alone the revision petitioner herein filed counter. ii] While so, the Executing Court which passed the exparte attachment should have also set aside the order of attachment but it failed to do so and the reasons found set out in the order in refusing to raise the attachment are not tenable in law. iii] Even though the revision petitioner has been very much available at the concerned address, the Executing Court simply recorded as though the sale notice was served by affixture and as such the procedure adopted by the Executing Court was against law. iv] Without giving an opportunity to the parties concerned, whatever order passed should be set aside, as principles of natural justice, would warrant the same. However, the Executing Court failed to resort to the principles of natural justice, warranting interference by this court in these revisions. Per contra, refuting and challenging the contentions and the arguments as put forth on the side of the revision petitioner, the learned counsel for the respondents would detail and delineate thus: i] The revision petitioner herein got from the Executing Court, number of adjournments from 14.08.2009 till 09.11.2009 for the purpose of filing counter. The executing court on seeing that the opportunities extended were not utilised by the revision petitioner herein, set it exparte. However, the same court subsequently set aside the exparte order and that too on no objection having been endorsed by the respondents herein. When such is the position, it would be too much on the part of the revision petitioner herein to expect that the Executing court should have also raised the order of attachment. ii) No doubt, charge was created over the immovable property concerned as per the consent award and it is an unregistered one and in order to get the respondents" right safe-guarded, the attachment was got effected and pending hearing of Execution Petition, if the attachment is raised, there might be likelihood of alienations and that would complicate the issue and third party interest also might creep into the matter. iii) Regarding the affixture of the sale notice is concerned, the learned counsel for the respondents would submit that in this case after perusing the records alone, the Executing Court recorded that there was proper service by affixture, warranting no interference by this court.;