UNION OF INDIA Vs. ORIENTAL CONSTRUCTION DELHI PRIVATE LIMITED

JUDGEMENT

(1.) This execution first appeal under section 47 read with section 90 of the Code of Civil Procedure has been filed by the Union of India-Judgment-debtor and is directed against the older of a Subordinate Judge 1st Class, Delhi dated 13th May, 1966, by which he has rejected the objection of the judgment-debtor and held in answer to preliminary issue No. 1 that the execution Court could not go behind the decree.

(2.) The material facts of the case are in a brief compass. On 17th August, 1964, an award was made between the parties which culminated in the passing of the decree on 5-3-1965. The award as embodied in the decreedirects certain amounts of payments and adjudicates some claims for refunds and adjustments on extra payment. In respect on items Nos. 8, 9 and 10, which are in dispute before me, the award determined the rate payable as well as the number of articles, bat did not specifically make the calculations nor directed payment of a lump sum amount for the said items. The contention of the judgment- debtor Union of India is that in respect of the aforesaid items, they had made considerable payments to the decree-holder before the making of the award during the pendency of the contract and they are entitled to claim its refund or adjustment from the decree holder-contractor. The contractor-decree-holder, on the other hand, asserts that the claim for refund or adjustment, if any, might and ought to have been made by the Union of India during the course of arbitration proceedings before the Arbitrator and once they have not done so, they cannot be allowed to challenge the terms or the effect or the operation of the award by asking the Court to adjudicate on the amount, of payments made by them and allow its adjustment or set off from the amount awarded.

(3.) The union of India raised their contention by an application made under Order 21, Rules] and 2, Civil Procedure Code in which they contended that the amount of Rs. 13)150.74 found to be due under the award may he set off against a sum of Rs. 4,478.88 which had already been paid to the decree-holder under items Nos. 8, 9 and 10 and after adjusting the same the balance due and payable was only Rs. 8,671.86. The decree-holder contested the contention, as mentioned above,