M.M. Kumar, J. - (1.) The question which arises for determination in this revision petition is whether the decree passed by the Court on 23.7.1974 making the award pronounced by the Arbitrator on 23.7.1974 itself is without jurisdiction or a nullity being in contravention of Sec. 17 of the Arbitration Act, 1940 (for brevity, the Act) or it is mere irregularity without vitiating the decree dated 23.7.1974.
(2.) The brief facts of the case which are necessary to decide the controversy before me are that there were some money dealings between The parties on 23.7.1974. The parties entered into an agreement to make a reference of the disputed amounts between them to Arbitrator, namely, Shri Bhagwat Swaroop. The Arbitrator allegedly conducted arbitration proceedings and filed an award in the Court of the Senior Sub Judge, Gurgaon for making it a rule of the Court. After recording the statements of decree holder and the judgment debtor the award for Rs. 5,150/ - was made rule of the Court on 23.7.1974 itself. In case of failure to make payment in instalment as stipulated in the decree, the judgment debtor was to pay interest @ 7 -1/2 per cent per annum. The statement made by the judgment debtor makes an interesting reading and when translated reads as under: "The award of the Arbitrator Ex. P.2 has been read over to me and I have appointed this Arbitrator vide Annexure P.1. Thumb marked. (Champat)"
(3.) The decree was not complied with resulting into filing of an execution application by the decree holder on 22.3.1978. The execution application was opposed by the judgment debtor by filing objection petition under Sec. 47 of the Code of Civil Procedure. Various objections were raised including the objection that the decree was obtained by the decree holder by fraud and misrepresentation and it was also alleged that the decree was passed by making the award as the rule of the Court in complete contravention of the provisions of Sec. 17 of the Act. The judgment debtor further contended that no notice as postulated by Sec. 17 of the Act was issued nor any opportunity to file reply was given by the Court while passing the decree on 23.7.1974. Sustaining the objection that the decree passed by the Court lacked jurisdiction and that the decree was nullity, the leaned trial court in its order dated 18.11.1980 held as under: " 11. It must be pointed out at the outset that when the award was presented in the Court on 23.7.1974, the learned trial Judge recorded the statements of the Arbitrator and the parties. The material statement to be referred to is that of the JD because the award had been rendered against him. The statement in original is before me as also its certified copy Ex. DH/1. All that is mentioned in the statement is that the JD had heard the award Ex. P.2 and that the Arbitrator was appointed by him through Ex. P. 1. Nothing else is to be found in the statement of Champat. It is not at all stated there in that the award was correct nor the JD requested the Court to make the award a rule of the Court. In the absence of the statement of Champat on these lines, it cannot be said that he had accepted the award as correct and that he wanted it to be made the rule of the Court, It also cannot be inferred from his statement that he did not want to file objection petition against the award. Article 115 of the Limitation Act, 1963 provides a period of 30 days for filing an application for setting aside an award. Sec. 17 of the Arbitration Act lays down the procedure as to how an award is to be made a rule of the Court. The court can pass judgment in terms of the award, if it sees no cause to remit the award or any matter referred to Arbitrator for reconsideration or to set aside the award. It is enjoined upon the Court to pronounce the judgment, according to the award only after the time for making an application to set aside the award has expired or such application having been made has been refused by it. At the risk of repetition I must state that in the case before this Court, the judgment debtor had not at all confessed the award. He no where indicated in his statement dated 23.7.74 that he did not intend to file objection petition against the award or that it be made the rule of the Court. It is thus, a clear case in which the impugned decree was passed in absolute contravention of Sec. 17 of the Arbitration Act, in as much as the decree was passed on the very day, the award was filed in the Court. The judgment in Gundapati's case is of no assistance to the decree holder because in the case before the Andhra Pradesh High Court, the appellant/judgment debtor had confessed the judgment as noted in para 1 sub para 2 of the report. 12. Moreover, the decisions of Patna High Court and Allahabad High Court quoted by the counsel for the JD are recent in time. All the decisions are by single Bench. In the case decided by Patna High Court, it was clearly held that an order confirming the award made before the expiry of the period of filing the objections was without jurisdiction. Similarly in Ramji Lal's case decided by Allahabad High Court, it was laid down that in view of the provisions of Sec. 17 of the Arbitration Act, it was not open to the Court to pronounce judgment on the very day the arbitration award was filed in the Court. The matter in hand is better governed by these authorities. 13. Another contention of the Counsel for the DH is that the executing Court cannot go behind the decree. There is no dispute with this proposition of law and for that reason, it is not necessary to quote the authorities on that subject. But at the same time, it is also well settled that the proposition quoted by the counsel for the DH is not absolute. It admits of the exception where the executing court can examine if the decree was passed by the court having jurisdiction and that the decree was not a nullity. On this aspect of the case, following authorities can be cited with advantages: (i) Chandrkka Misir and Anr. v/s. Bhaiyala,l and (ii) Naib Singh and Ors. v/s. Mihan Singh and Ors., 1976 PLJ 100. 18. As a consequence of what has been held under issue No.1 above, the objection petition succeeds and the execution application is dismissed. In the peculiar circumstances of the case, I leave the parties to bear their own costs. File be consigned to record room.";