# State of U.P. & Ors v. Shri Raj Veer Singh

- **Citation:** (2024) 4 ILRA 772
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-12
- **Bench:** Shekhar B. Saraf
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-shri-raj-veer-singh-51852
- **Pages:** 28

## Headnote

(A) Civil Law - Arbitration & Conciliation -
Execution of Arbitral Award - Arbitration
& Conciliation Act, 1996 - Section 34 -
Application for Setting Aside Arbitral
Awards, Section 36 - Enforcement of
Arbitral Awards, Section 37 - Appealable
Orders, Code of Civil Procedure, 1908 -
Section 47 - Questions to be determined
by the Court executing decree, The
Constitution of India - Article 227 -
Supervisory
jurisdiction
-
Limits
of
Executing Court's Jurisdiction - Abuse of
Process - Frivolous Litigation - Limited
Jurisdiction
of
Executing
Court
-
executing court's role is limited to
executing the decree, not re-examining
its validity - Role of an executing court
is akin to a microscopic inspection hole -
Limited Scope of Writ Jurisdiction - Writ
jurisdiction cannot be used to challenge
the validity of a final arbitral award,
except
in
exceptional
circumstances.(Para -42)

(B) Civil Law - Code of Civil Procedure,
1908
-
Scope
of
Objections
under
Section 47 CPC : Objections should be
strictly related to execution, discharge,
or
fulfillment
of
the
decree,
not
substantive rights - Frivolous objections
under Section 47 CPC can be dealt with
strongly, including imposition of costs

 - Legal Fiction of "As if it were a
Decree" : This fiction is for the limited
purpose of execution and does not
equate an arbitral award to a court
decree.(Para -42)

(C) Civil Law - Code of Civil Procedure,
1908 - Finality of Arbitral Awards: Once
an arbitral award is finalized through
Sections 34 and 37 of the Arbitration
Act, objections under Section 47 CPC are
not permissible. (Para -42)
Disputes arose between Petitioner No. 1(State)
and
Respondent
regarding
a
construction
contract - Arbitral award was passed in 2013 -
State filed an application under Section 34 of
Arbitration Act - rejected in 2014 - First appeal
against rejection - dismissed in 2016 - SLP before
SC - dismissed - on grounds of delay in 2018 -
Respondent initiated execution proceedings in
2019 under Section 36 of Act - State raised
objections under Section 47 of CPC in 2022 -
dismissed by Commercial Court - award holder
facing delays in enforcing decree due to award
debtor's tactics - debtor abusing execution
process to obstruct justice - harmful to judicial
system and warrants exemplary costs to deter
similar behavior by other debtors - Aggrieved by
orders in execution proceedings - Petitioners filed
writ petition in 2022 - challenging the execution
orders.(Paras 2(a)-(h) ,41)

HELD: - Writ petition dismissed as frivolous,
vexatious, motivated and being an abuse of the
process of Court, imposing costs of Rs. 5,00,000
for misuse of judicial process and delay
tactics.(Paras 43, 48, 52)

Petition dismissed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,819 of 93,991. This is a partial read: ask again with offset=39819 for what follows._

772 INDIAN LAW REPORTS ALLAHABAD SERIES
taken that on the first date of hearing a sum
of Rs. 33,000/- towards rent and cost of suit,
interest has been got deposited and the rent
every month is being deposited, no default has
been committed and petitioner is entitled to the
benefit of Section 20 (4) of the Act. By way of
the amendment at the Revisional stage the
tenant/ petitioner intended to incorporate the
plea of protection of Section 114 of the Transfer
of Property Act.

9. This takes the Court to dwell into the
question as to whether benefit of Section 114 of
Transfer of Property Act as sought to be
claimed by the petitioner can be granted.
Section 114 of the Transfer of Property Act is
reads as under:

"114. Relief against forfeiture for
non-payment of rent.-

Where a lease of immoveable
property has determined by forfeiture for nonpayment of rent, and the lessor sues to eject the
lessee, if, at the hearing of the suit, the lessee
pays or tenders to the lessor the rent in arrear,
together with interest thereon and his full costs
of the suit, or gives such security as the Court
thinks sufficient for making such payment
within fifteen days, the Court may, in lieu of
making a decree for ejectment, pass an order
relieving the lessee against the forfeiture; and
thereupon the lessee shall hold the property
leased as if the forfeiture had not occurred."

10. From the perusal of the Provision 114
of the Transfer of Property Act it is apparent
that it is attracted only where a lease of
immovable property is determined by forfeiture
and not otherwise. In the case at hand, the
tenancy of the petitioner has been determined
by means of a simple notice under Section 106
of Transfer of Property Act. There is neither a
case for forfeiture of tenancy nor there is an
agreement which is a prerequisite condition for
the applicability of Section 114 of Transfer of
Property Act. In the opinion of the Court and as
is also borne out from the import of Section 114
of Transfer of Property Act itself Section 114
applies to those cases where the landlord
invokes his rights under a forfeiture clause
under the agreement and determines the lease
by forfeiture and sues to eject the tenant on the
ground of forfeiture of lease. Admittedly this is
not the case at hand. The law in this regard has
been laid down in numerous decisions of this
Court some of them being 2000 (2) ACJ 1021,
2007 ACJ 2278, 2008 ACJ 2219 and 1996 (1)
ACJ 454.

11. Thus the proposed amendment being
totally misconceived and unnecessary was
rightly rejected by the Revisional Court.

12. There is yet one other aspect of the
matter. In the opinion of the Court there is no
requirement of mentioning the Section 114 in
the written statement and it is only essential to
plead complete deposit as required under the
Section. The Court finds that complete
pleadings in this regard has already been taken
in the written statement filed by the petitioner.

13. In this view of the matter also the
proposed amendment is totally unwarranted.

14. For the above reasons the Court finds
no merit in the petition. It is accordingly
dismissed.

15. No order as to costs.
----------
(2024) 4 ILRA 772
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2024
BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Matters U/A 227 No. 6346 of 2022 (Civil)

State of U.P. & Ors. ...Petitioners
Versus
Shri Raj Veer Singh ...Respondent
4 All. State of U.P. & Ors. Vs. Shri Raj Veer Singh
773
Counsel for the Petitioners:
Sri Manish Goyal (Addl. A.G.), Sri Ashok
Kumar Goyal (Addl. C.S.C.)

Counsel for the Respondent:
Sri Anurag Khanna (Sr. Adv), Sri Punit
Kumar Gupta, Ms. Poorva Agarwal

(A) Civil Law - Arbitration & Conciliation -
Execution of Arbitral Award - Arbitration
& Conciliation Act, 1996 - Section 34 -
Application for Setting Aside Arbitral
Awards, Section 36 - Enforcement of
Arbitral Awards, Section 37 - Appealable
Orders, Code of Civil Procedure, 1908 -
Section 47 - Questions to be determined
by the Court executing decree, The
Constitution of India - Article 227 -
Supervisory
jurisdiction
-
Limits
of
Executing Court's Jurisdiction - Abuse of
Process - Frivolous Litigation - Limited
Jurisdiction
of
Executing
Court
-
executing court's role is limited to
executing the decree, not re-examining
its validity - Role of an executing court
is akin to a microscopic inspection hole -
Limited Scope of Writ Jurisdiction - Writ
jurisdiction cannot be used to challenge
the validity of a final arbitral award,
except
in
exceptional
circumstances.(Para -42)

(B) Civil Law - Code of Civil Procedure,
1908
-
Scope
of
Objections
under
Section 47 CPC : Objections should be
strictly related to execution, discharge,
or
fulfillment
of
the
decree,
not
substantive rights - Frivolous objections
under Section 47 CPC can be dealt with
strongly, including imposition of costs

 - Legal Fiction of "As if it were a
Decree" : This fiction is for the limited
purpose of execution and does not
equate an arbitral award to a court
decree.(Para -42)

(C) Civil Law - Code of Civil Procedure,
1908 - Finality of Arbitral Awards: Once
an arbitral award is finalized through
Sections 34 and 37 of the Arbitration
Act, objections under Section 47 CPC are
not permissible. (Para -42)
Disputes arose between Petitioner No. 1(State)
and
Respondent
regarding
a
construction
contract - Arbitral award was passed in 2013 -
State filed an application under Section 34 of
Arbitration Act - rejected in 2014 - First appeal
against rejection - dismissed in 2016 - SLP before
SC - dismissed - on grounds of delay in 2018 -
Respondent initiated execution proceedings in
2019 under Section 36 of Act - State raised
objections under Section 47 of CPC in 2022 -
dismissed by Commercial Court - award holder
facing delays in enforcing decree due to award
debtor's tactics - debtor abusing execution
process to obstruct justice - harmful to judicial
system and warrants exemplary costs to deter
similar behavior by other debtors - Aggrieved by
orders in execution proceedings - Petitioners filed
writ petition in 2022 - challenging the execution
orders.(Paras 2(a)-(h) ,41)

HELD: - Writ petition dismissed as frivolous,
vexatious, motivated and being an abuse of the
process of Court, imposing costs of Rs. 5,00,000
for misuse of judicial process and delay
tactics.(Paras 43, 48, 52)

Petition dismissed. (E-7)

List of Cases cited:

1. Sundaram Finance Ltd. Vs Abdul Samad &
anr., (2018) 3 SCC 622

2. BCCI Vs Kochi Cricket Pvt. Ltd. & ors., (2018)
6 SCC 287

3. Kanpur Jal Sansthan & anr. Vs Bapu
Constructions, (2015) 5 SCC 267,

4. Leela Hotels Ltd. Vs HUD Corp. Ltd., (2012) 1
SCC 302

5. MTNL Vs Applied Electronics Ltd., (2017) 2
SCC 37

6. ITI Ltd. Vs SPCN Ltd., (2002) 5 SCC 510

7. M. Anasuya Devi & anr. Vs M. Manik Reddy &
ors., (2003) (8) SCC 565

8. N.S.S. Narayana Sarma & Ors. Vs M/s.
Goldstone Export (P) Ltd. & Ors., AIR 2022 SC
251
774 INDIAN LAW REPORTS ALLAHABAD SERIES
9. U.O.I. & Ors. Vs Manager, M/s. Jain &
Associates, (2001) 3 SCC 277

10. Magma Leasing Vs Badri Vishal & Ors., 2021
SCC OnLine All

11. GE Money Financial Services Ltd. Vs Mohd.
Azaz & Anr., 2013(7) ADJ (DB-LB)

12. Jaiman Shah Vs Ilia Pandya, 2001(2) MHLJ
297

13. M/s. R.S. Bajwa & Co. Vs St. of Chhatt. &
M/s. ICC Ltd. Vs William & Ors., 2015 SCC
OnLine Ker 24805

14. Shreenath & Anr. Vs Rajesh & Ors., AIR
1998 SC 1827

15. UII Co. Ltd. Vs Rajendra Singh & Ors.
(2000) 3 SCC 581

16. Kohinoor Transporters Vs St. of U.P., (2018)
18 SCC 165

17. BOB Vs Kotak Mahindra Bank Ltd., (2020)
17 SCC 798

18. PSCS Corp. Ltd. & Anr. Vs Atwal Rice &
General Mills, (2017) 8 SCC 116

19. Paramjeet Singh Patheja Vs ICDS Ltd.,
(2006) 13 SCC 322

20. UOI Vs Vedanta, (2020) 10 SCC 1

21. St. of Karn. Vs St. of T.N., (2017) 3 SCC 274

22. Pam Developments Pvt. Ltd. Vs St. of W.B.,
(2019) 8 SCC 112

23. M/s. M.S.R. Enterprises Vs M/s. Pooja
Enterprises, Civil Revision Petition No. 1571 of
2021

24. Pradeep Mehra Vs Harjivan J. Jethwa, 2023
SCC OnLine SC 1395

25. Dhurandhar Prasad Singh Vs Jai Prakash
University, (2001) 6 SCC 534

26. Nagar Palika Nigam Vs Krishi Upaj Mandi
Samiti & Ors., (2008) 12 SCC 364
27. I.O.C. Ltd. & Anr. Vs Commercial Court &
Anr., 2023 SCC OnLine All 809

28. Hindustan Zinc Ltd. Vs NRDC, 2023 SCC
OnLine Del 330

29. Sanjay Agarwal Vs Rahul Agarwal, 2024 SCC
OnLine All 149

30. Bellary Nirmithi Kendra Vs M/s Capital Metal
Industries, C.R.P. No. 100067 of 2022

31. C.I.F. Co. Ltd. Vs Amrapali Enterprises &
Anr., 2023 SCC OnLine Cal

32. Rahul S. Shah Vs Jinendra Kumar Gandhi;
(2021) 6 SCC 418

33. Vinod Seth Vs Devinder Bajar & Anr., (2010)
8 SCC 1

34. Ramrameshwari Devi & Ors. Vs Nirmala Devi
& Ors., (2011) 8 SCC 249

35. Maria Margarida Sequeira Fernandes Vs
Erasmo Jack de Sequeira, (2012) 5 SCC 370

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. The instant writ application under
Article 227 of the Constitution of India has
been filed by the State of Uttar Pradesh
(hereinafter referred to as the 'Petitioner
No. 1') against the order dated May 17,
2022 passed by the Additional District &
Sessions Judge, Bijnor. A further challenge
has been laid to the orders dated July 21,
2022 and August 2, 2022 passed by the
Commercial Court, Moradabad.

FACTS

2. I have laid down the factual matrix
leading to the instant appeal below:

a. Petitioner No. 1 and Shri Raj
Veer Singh (hereinafter referred to as the
'Respondent') entered into a contract for
construction of cross drainage, siphon at
4 All. State of U.P. & Ors. Vs. Shri Raj Veer Singh
775
Km 5.355 of main canal under Madhya
Ganga Canal Phase-II Project in District
Bijnor.

b. Disputes arose between the
parties in terms of the aforesaid contract.
Accordingly, in term of the Clause 42 & 43
of the contract between the parties, these
disputes were referred to arbitration.

c.
Shri
A.K.
Gupta,
Sole
Arbitrator passed the arbitral award on
December 12, 2013. Against the said
arbitral award, the Petitioner No. 1
preferred an application under Section 34
of the Arbitration & Conciliation Act, 1996
(hereinafter referred to as the 'Act') before
the District Judge, Bijnor. The said
application was rejected vide order dated
April 9, 2014.

d. The Petitioner No. 1 filed a
first appeal before this Court against the
order of the District Judge, Bijnor.
However, the said first appeal was
dismissed by this Court vide order dated
December 22, 2016. A Special Leave
Petition
under
Article
136
of
the
Constitution of India was also preferred by
the Petitioner No. 1 before the Hon'ble
Supreme Court which was dismissed on the
ground of delay vide order dated November
2, 2018. Review petition filed by the
Petitioner No. 1 against the order dated
November 2, 2018 was dismissed by the
Hon'ble Supreme Court on January 15,
2019.

e.
Thereafter,
an
execution
application was filed in the year 2019 by
the Respondent under Section 36 of the
Act. On May 17, 2022, the Additional
District and Sessions Judge, Bijnor passed
an order in the said execution application
directing the State Bank of India, Main
Branch Nazeebabad, Bijnor to cease the
bank account of Executive Engineer,
Madhya
Ganga
Canal
Construction
Division - 7 Bijnor and not to permit
withdrawal from the said account.

f. Subsequently, the execution
application filed by the Respondent was
transferred
to
Commercial
Court,
Moradabad.
The
Commercial
Court,
Moradabad vide its order dated July 21,
2022 directed the Petitioner No. 1 to ensure
the payment of the awarded amount along
with interest on or before August 10, 2022.

g. Petitioner No. 1 preferred an
objection in under Section 47 of the Code
of Civil Procedure, 1908 (hereinafter
referred to as the 'CPC, 1908') in the year
2022
before
the
Commercial
Court,
Moradabad which was rejected vide order
dated August 2, 2022.

h. Aggrieved by the order dated
May 17, 2022 passed by the Additional
District and Sessions Judge, Bijnor and the
orders dated July 21, 2022, and August 2,
2022 passed by the Commercial Court,
Moradabad, the Petitioners have filed the
instant writ petition under Article 227 of
the Constitution of India before this Court.

CONTENTIONS
OF
THE
PETITIONERS

3. Sri Manish Goyal, learned
Additional Advocate General appearing for
the petitioners has made the following
submissions on behalf of the Petitioners:

i. The Chief Engineer vide letter
dated July 26, 2011 had forward the names
of three superintending engineers who were
not associated with the work under the
contract to the Respondent for choosing
776 INDIAN LAW REPORTS ALLAHABAD SERIES
anyone of them to be appointed as the sole
arbitrator. However, the Respondent vide
its letters dated August 4, 2011, and August
8, 2011 informed the Petitioner No. 1 that it
has chosen the name of the Shri A.K. Singh
to be appointed as the Sole Arbitrator from
its own list which was sent by it to the
Petitioner No. 1 on July 23, 2011.

ii. The said
action of the
Respondent of nominating the name of
Sole Arbitrator of its own choice and from
its own list was contrary to the arbitration
clause contained between the parties. The
name of Shri A.K. Singh was neither
mentioned in the list sent by the Chief
Engineer vide its letter dated July 26, 2011,
nor was it accepted by the Petitioner No. 1
at any stage. Several objections were raised
before Shri A.K. Singh, Sole Arbitrator
with regard to his appointment but the same
were rejected by him. Thereafter, the Sole
Arbitrator continued to proceed with the
arbitration in an arbitrary manner and gave
the final award on December 12, 2013 in
favour of the Respondent.

iii.
The
Award
passed
on
December 12, 2013 by Shri A.K. Singh,
Sole Arbitrator is without jurisdiction,
tainted with fraud and un executable. The
Commercial Court, Moradabad committed a
manifest error in not deciding the objection
filed by the Petitioners No. 1 under Section
47 of the CPC, 1908 on its merit.

iv. Even though an arbitral award
may not be a decree passed by a court but it
is to be enforced in accordance with the
provisions of the CPC, 1908. Therefore, for
the limited purpose of the enforcement
under Section 36 of the Act, an arbitral
award has to be executed like a decree of
the Court. Reliance is placed in this regard
on the judgments of the Hon'ble Supreme
Court in Sundaram Finance Ltd. v.
Abdul Samad and Another reported in
(2018) 3 SCC 622, Board of Control for
Cricket in India v. Kochi Cricket Pvt.
Ltd. and Ors. reported in (2018) 6 SCC
287, Kanpur Jal Sansthan and Anr. v.
Bapu Constructions reported in (2015) 5
SCC 267, Leela Hotels Limited v.
Housing
and
Urban
Development
Corporation Ltd. reported in (2012) 1
SCC 302, Mahangar Telephone Nigam
Ltd. v. Applied Electronics Ltd. reported
in (2017) 2 SCC 37, ITI Ltd. v. Seimens
Public Communication Network Ltd.
reported in (2002) 5 SCC 510, M.
Anasuya Devi and Anr. v. M. Manik
Reddy and Ors. reported in (2003) (8)
SCC 565, N.S.S. Narayana Sarma and
Ors. v. M/s. Goldstone Export (P) Ltd.
and Ors. reported in AIR 2022 SC 251,
Union of India and Ors. v. Manager,
M/s. Jain and Associates reported in
(2001) 3 SCC 277, the Allahabad High
Court in Magma Leasing v. Badri Vishal
and Ors. reported in 2021 SCC OnLine
All and GE Money Financial Services
Ltd. v. Mohd. Azaz and Another
reported in 2013(7) ADJ (DB-LB), the
Bombay High Court in Jaiman Shah v.
Ilia Pandya reported in 2001(2) MHLJ
297, the Chattisgarh High Court in M/s.
R.S.
Bajwa
&
Co.
v.
State
of
Chhattisgarh, and the Kerala High
Court in M/s. India Cement Capital Ltd.
v. William and Ors. reported in 2015
SCC OnLine Ker 24805.

v. Whenever objections are filed
under Section 47 of the CPC, 1908 then the
same are required to be decided on merits.
It is a settled proposition of law that fraud
cannot be waived and neither the Court
under Section 34 of the Act and nor this
Court under Section 37 of the Act decided
the issue of fraud. It is correct that
4 All. State of U.P. & Ors. Vs. Shri Raj Veer Singh
777
Explanation-1 to Section 34(2)(b) of the
Act treats fraud to be as an element against
public policy of India but when the Court
under Section 34 of the Act has not dealt
with the said objection, it is trite that the
same requires examination at any stage of
the proceedings. Therefore, in terms of the
settled law by the Hon'ble Supreme Court
the issue of fraud can be brought before the
Hon'ble Court at any stage of the
proceedings in as much as the same is
based upon the principle that fraud vitiates
even the most solemn acts. Fraud coupled
with
corruption
is
an
insignia
of
disentitlement under a decree thereby
making it un executable. Hence, objections
under Section 47 of the CPC, 1908 are
required to be decided on merits and so
long as the said objections are not decided
on merit neither the account can remain
frozen nor assets of the Petitioner No. 1 can
remain under attachment. Public at large
cannot be made to suffer and that too when
it is more than evident that the Respondent
colluded with not only the officers of the
Petitioner No. 1 but nominated a Senior
Officer of the Petitioner No. 1 as the Sole
Arbitrator who passed the award of his
choice. Reliance is placed upon the
judgments of the Hon'ble Supreme Court
in Shreenath and Anr. v. Rajesh and
Ors. reported in AIR 1998 SC 1827 and
United India Insurance Co. Ltd. v.
Rajendra Singh and Ors. reported in
(2000) 3 SCC 581.

vi. It is a well settled law that if a
decree is tainted by fraud and is without
jurisdiction, the objection under Section 47
of the CPC, 1908 stating that the decree is
not executable ought to be decided on merit
so that justice can be done. Reliance is
placed upon the judgments of the Hon'ble
Supreme Court in Kohinoor Transporters
v. State of U.P. reported in (2018) 18
SCC 165, Bank of Baroda v. Kotak
Mahindra Bank Ltd. reported in (2020)
17 SCC 798, and Punjab State Civil
Supplies Corporation Ltd. and Anr. v.
Atwal Rice and General Mills reported
in (2017) 8 SCC 116.

vii. In view of the aforesaid the
instant writ petition must be allowed and
the impugned orders must be set aside by
this Court.

CONTENTIONS
OF
THE
RESPONDENT

4. Sri Anurag Khanna, learned Senior
Advocate appearing on behalf of the
Respondent
has
made
the
following
submissions:

i. Execution proceedings under
Section 36 of the Act are for the
enforcement of an arbitral award and since
an arbitral award cannot be treated as a
decree passed by a civil court, hence
objections under Section 47 of the CPC,
1908 are not maintainable under Section 36
of the Act. Reliance is placed upon the
judgments of the Hon'ble Supreme Court
in Paramjeet Singh Patheja v. ICDS Ltd.
reported in (2006) 13 SCC 322, Union of
India v. Vedanta reported in (2020) 10
SCC 1, State of Karnataka v. State of
Tamil Nadu reported in (2017) 3 SCC
274, Pam Developments Pvt. Ltd. v.
State of West Bengal reported in (2019) 8
SCC 112, and the High Court for the
State of Telangana in M/s. M.S.R.
Enterprises v. M/s. Pooja Enterprises
(Civil Revision Petition No. 1571 of
2021).

ii. All objections with regard to
fraud or jurisdiction can be decided by an
appropriate court under Section 34 of the
778 INDIAN LAW REPORTS ALLAHABAD SERIES
Act. Moreover, once all the issues have
been decided by an appropriate court under
Section 34 of the Act and the same having
attained finality after rejection of appeal
under Section 37 of the Act, the award
cannot be objected or reconsidered at the
stage of enforcement under Section 36 of
the Act.

ANALYSIS

5. I have heard the learned counsel
appearing for the parties and perused the
materials on record.

6. Since the primary question involved
in the instant writ petition revolves around
the applicability of Section 47 of the CPC,
1908 to execution proceedings under
Section 36 of the Act, I shall deal with the
same first. Section 47 of the CPC, 1908 is
extracted below:

"47. Questions to be determined
by the Court executing decree.-(1) All
questions arising between the parties to the
suit in which the decree was passed, or
their representatives, and relating to the
execution, discharge or satisfaction of the
decree, shall be determined by the Court
executing the decree and not by a separate
suit.
***

(3) Where a question arises as to
whether any person is or is not the
representative of a party, such question
shall, for the purposes of this section, be
determined by the Court.

[Explanation
I.-For
the
purposes of this section, a plaintiff whose
suit has been dismissed and a defendant
against whom a suit has been dismissed are
parties to the suit.

Explanation II.-(a) For the
purposes of this section, a purchaser of
property at a sale in execution of a decree
shall be deemed to be a party to the suit in
which the decree is passed; and (b) all
questions relating to the delivery of
possession of such property to such
purchaser or his representative shall be
deemed to be questions relating to the
execution, discharge or satisfaction of the
decree within the meaning of this section.]"

7. What is evident from the bare text
of Section 47 of the CPC, 1908 is that, it
delineates the jurisdiction of the court
executing a decree and outlines the scope
within which questions relating to the
parties to the suit, or their representatives,
or relating to the execution, discharge, or
satisfaction of the decree, are to be
determined.

8. The scope of Section 47 of the
CPC, 1908 was explained by the Hon'ble
Supreme Court recently in its judgment in
Pradeep Mehra v. Harjivan J. Jethwa
reported in 2023 SCC OnLine SC 1395
(Coram:
Sanjay
Kishan
Kaul
and
Sudhanshu
Dhulia,
JJ.).
Relevant
paragraphs have been extracted below:

"10. A
bare
perusal of
the
aforesaid
provision
shows
that
all
questions between the parties can be
decided by the executing court. But the
important aspect to remember is that these
questions are limited to the "execution of
the decree". The executing court can never
go
behind
the
decree.
Under
Section 47, CPC the executing court cannot
examine the validity of the order of the
court which had allowed the execution of
the decree in 2013, unless the court's order
is
itself
without
jurisdiction.
More
importantly this order (the order dated
4 All. State of U.P. & Ors. Vs. Shri Raj Veer Singh
779
12.02.2013), was never challenged by the
tenants/judgment debtors before any forum.

11. The multiple stages a civil
suit invariably has to go through before it
reaches finality, is to ensure that any error
in law is cured by the higher court. The
appellate court, the second appellate court
and the revisional court do not have the
same powers, as the powers of the
executing court, which are extremely
limited. This was explained by this Court
in Dhurandhar
Prasad
Singh v. Jai
Prakash University, (2001) 6 SCC 534, in
para 24, it had stated thus:

"24. .......... The exercise of
powers under Section 47 of the Code is
microscopic and lies in a very narrow
inspection hole. Thus, it is plain that
executing court can allow objection under
Section 47 of the Code to the executability
of the decree if it is found that the same is
void ab initio and a nullity, apart from the
ground that the decree is not capable of
execution under law either because the
same was passed in ignorance of such a
provision
of
law
or
the
law
was
promulgated making a decree inexecutable
after its passing."

12. This Court noted further:

"..........
The
validity
or
otherwise of a decree may be challenged
by filing a properly constituted suit or
taking any other remedy available under
law on the ground that the original
defendant absented himself from the
proceeding of the suit after appearance as
he had no longer any interest in the
subject of dispute or did not purposely
take interest in the proceeding or colluded
with the adversary or any other ground
permissible under law.

13. The reality is that pure civil
matters take a long time to be decided, and
regretfully it does not end with a decision,
as execution of a decree is an entirely new
phase in the long life of a civil litigation.
The inordinate delay, which is universally
caused throughout India in the execution of
a decree, has been a cause of concern with
this Court for several years. In Rahul S.
Shah v. Jinendra Kumar Gandhi, (2021) 6
SCC 418, this Court had observed that a
remedy which is provided for preventing
injustice (in the Civil Procedure Code) is in
fact being misused to cause injustice by
preventing timely implementation of orders
and execution of decrees. Then, it had
observed as under:

"23. ................ The execution
proceedings which are supposed to be a
handmaid of justice and subserve the cause
of justice are, in effect, becoming tools
which are being easily misused to obstruct
justice."

14. The above judgment is an
important
judgment
in
respect
of
Section 47 as well as Order XXI, CPC as
the three Judge Bench decision of this
Court not only condemned the abuse of
process done in the garb of exercise of
powers under Section 47 read with Order
XXI, CPC, but also gave certain directions
to be followed by all Civil Courts in their
exercise of powers in the execution of a
decree. It further directed all the High
Courts to update and amend their Rules
relating to the execution of decrees so that
the decrees are executed in a timely
manner. As far as Section 47 is concerned,
this Court had stated as under:

"24. In respect of execution of a
decree, Section 47 CPC contemplates
adjudication of limited nature of issues
780 INDIAN LAW REPORTS ALLAHABAD SERIES
relating to execution i.e. discharge or
satisfaction of the decree and is aligned
with the consequential provisions of Order
21 CPC. Section 47 is intended to prevent
multiplicity of suits. It simply lays down the
procedure and the form whereby the court
reaches a decision. For the applicability of
the section, two essential requisites have to
be kept in mind. Firstly, the question must
be the one arising between the parties and
secondly, the dispute relates to the
execution, discharge or satisfaction of the
decree. Thus, the objective of Section 47 is
to prevent unwanted litigation and dispose
of all objections as expeditiously as
possible.

25. These provisions contemplate
that for execution of decrees, executing
court must not go beyond the decree.
However,
there
is
steady
rise
of
proceedings akin to a retrial at the time of
execution causing failure of realisation of
fruits of decree and relief which the party
seeks from the courts despite there being a
decree in their favour. Experience has
shown that various objections are filed
before the executing court and the decreeholder is deprived of the fruits of the
litigation and the judgment-debtor, in
abuse of process of law, is allowed to
benefit from the subject-matter which he is
otherwise not entitled to.

26.
The
general
practice
prevailing in the subordinate courts is that
invariably in all execution applications, the
courts first issue show-cause notice asking
the judgment-debtor as to why the decree
should not be executed as is given under
Order 21 Rule 22 for certain class of cases.
However, this is often misconstrued as the
beginning of a new trial. For example, the
judgment-debtor sometimes misuses the
provisions of Order 21 Rule 2 and Order
21 Rule 11 to set up an oral plea, which
invariably leaves no option with the court
but to record oral evidence which may be
frivolous.
This
drags
the
execution
proceedings indefinitely."

15. This Court then gave certain
directions, which were to be mandatorily
followed by all Courts dealing with civil
suits and execution proceedings. Two of its
directions were as follows:

"42.8.
The
court
exercising
jurisdiction under Section 47 or under
Order 21 CPC, must not issue notice on an
application of third party claiming rights in
a mechanical manner. Further, the court
should refrain from entertaining any such
application(s) that has already been
considered by the court while adjudicating
the suit or which raises any such issue
which otherwise could have been raised
and determined during adjudication of suit
if due diligence was exercised by the
applicant.
***

42.12. The executing court must
dispose of the execution proceedings within
six months from the date of filing, which
may be extended only by recording reasons
in writing for such delay."

16. It further directed all the
High Courts to update their Rules relating
to execution of decrees. It was as under:

"43. We further direct all the
High Courts to reconsider and update all
the Rules relating to execution of decrees,
made under exercise of its powers under
Article 227 of the Constitution of India and
Section 122 CPC, within one year of the
date of this order. The High Courts must
ensure that the Rules are in consonance
4 All. State of U.P. & Ors. Vs. Shri Raj Veer Singh
781
with CPC and the above directions, with an
endeavour to expedite the process of
execution with the use of information
technology tools. Until such time these
Rules are brought into existence, the above
directions shall remain enforceable."

9.

Through
various
judicial
pronouncements, the Hon'ble Supreme
Court has underscored that while the
executing court has authority to decide all
questions arising between the parties, its
jurisdiction
is
confined
to
matters
pertaining to the execution of the decree.
An executing court cannot delve in the
validity of a decree unless it lacks
jurisdiction. This principle is crucial in
maintaining the finality of decrees. Powers
of the executing court are inherently
limited compared to appellate or revisional
courts. As elucidated by the Hon'ble
Supreme Court in Dhurandhar Prasad
Singh v. Jai Prakash University reported
in (2001) 6 SCC 534 (Coram: G.B.
Pattanaik and B.N. Agrawal, JJ.) the
executing court's role is akin to "a
microscopic inspection hole" focusing
solely on the executability of the decree.

10. Courts must exercise caution and
diligence when adjudicating objections
under Section 47 of the CPC, 1908. The
consequences of erroneously allowing or
disallowing objections can have farreaching implications for the parties
involved and may undermine the integrity
of the execution process. The limited scope
of the executing court's jurisdiction under
Section 47 of the CPC, 1908 requires a
precise delineation of the issues that fall
within its purview. Courts must ensure that
objections
pertain
solely
to
matters
concerning
execution,
discharge,
or
satisfaction of the decree and do not
encroach upon substantive rights or legal
issues beyond the decree's scope. Courts
must also be mindful of the principle of
finality of decrees when adjudicating
objections under Section 47 of the CPC,
1908.
Decrees
represent
the
final
determination of the rights and liabilities of
the parties, and objections seeking to
reopen
issues
already
decided
may
undermine the principle of finality.

11. Courts need to balance the need
for expeditious resolution of execution
proceedings with the principles of fairness
and due process. While efficiency is
essential in the administration of justice,
courts must afford parties a reasonable
opportunity to present their case and be
heard on matters relevant to the execution
process.
Rushing
through
objections
without adequate consideration of the
parties'
submissions
may
result
in
miscarriage of justice and undermine the
credibility of the judicial process.

12. However, there is also a need to
guard against the misuse of objections
under Section 47 of the CPC, 1908 as a
means to delay or obstruct the execution
process. Parties may resort to frivolous or
dilatory objections in an attempt to prolong
proceedings or gain tactical advantage.
Courts
must
exercise
vigilance
in
identifying and dismissing such objections
to
ensure
expeditious
and
effective
enforcement of decrees.

13. Having dealt with the scope of
Section 47 of the CPC, 1908, this Court will
now deal with the applicability of Section 47
of the CPC, 1908 to execution of arbitral
awards under Section 36 of the Act.

14. Section 36 of the Act which
governs the execution of the arbitral awards
is extracted below for ease of reference:
782 INDIAN LAW REPORTS ALLAHABAD SERIES

"36. Enforcement.-(1) Where
the time for making an application to set
aside the arbitral award under Section 34
has expired, then, subject to the provisions
of sub-section (2), such award shall be
enforced in accordance with the provisions
of the Code of Civil Procedure, 1908 (5 of
1908), in the same manner as if it were a
decree of the court.

(2) Where an application to set
aside the arbitral award has been filed in
the court under Section 34, the filing of
such an application shall not by itself
render that award unenforceable, unless
the court grants an order of stay of the
operation of the said arbitral award in
accordance with the provisions of subsection (3), on a separate application made
for that purpose.

(3) Upon filing of an application
under sub-section (2) for stay of the
operation of the arbitral award, the court
may, subject to such conditions as it may
deem fit, grant stay of the operation of such
award for reasons to be recorded in writing:

Provided that the court shall,
while considering the application for grant
of stay in the case of an arbitral award for
payment of money, have due regard to the
provisions for grant of stay of a money
decree under the provisions of the Code of
Civil Procedure, 1908 (5 of 1908):]

[Provided further that where the
Court is satisfied that a prima facie case is
made out that,-

(a) the arbitration agreement or
contract which is the basis of the award; or

(b) the making of the award, was
induced or effected by fraud or corruption,
it shall stay the award unconditionally
pending disposal of the challenge under
Section 34 to the award.

Explanation.-For the removal of
doubts, it is hereby clarified that the above
proviso shall apply to all court cases
arising out of or in relation to arbitral
proceedings, irrespective of whether the
arbitral
or
court
proceedings
were
commenced
prior
to
or
after
the
commencement
of
the Arbitration
and
Conciliation (Amendment) Act, 2015.]"

15. The phrase that lies at the centre
of the instant dispute is the one which
provides that an arbitral award will be
"enforced
in
accordance
with
the
provisions of the Code of Civil Procedure,
1908 (5 of 1908), in the same manner as if
it were a decree of the court." The question
which arises is that although Section 36 of
the Act, provides for the execution of
arbitral awards as if they were a decree of
the court, do they acquire the similar status
as that of a decree passed by a civil court?

16. The language of a statute serves as
the cornerstone of statutory interpretation,
providing the framework within which
courts must construe and apply the law. It
is through the words and phrases used in a
statute that the Legislature communicates
its intentions. The principle that the
language of a statute is the determinative
factor of legislative intent reflects the
fundamental
tenet
of
statutory
interpretation that courts must give effect to
the plain meaning of the statutory language.
This principle is rooted in the doctrine of
legislative supremacy, which holds that the
Legislature is the supreme authority in the
enactment of laws. As such, courts are
obligated to interpret statutes in accordance
with the ordinary and natural meaning of
4 All. State of U.P. & Ors. Vs. Shri Raj Veer Singh
783
the words used, absent clear evidence of
legislative intent to the contrary.

17. Moreover, the plain meaning rule
serves to safeguard the separation of
powers and preserve the integrity of the
legislative process. By respecting the
language chosen by the Legislature, courts
refrain
from
encroaching
upon
the
legislative domain and usurping the role of
the legislature. Instead, they defer to the
democratic process and give effect to the
will of the legislature as expressed through
the text of the statute.

18. In Nagar Palika Nigam v. Krishi
Upaj Mandi Samiti and Ors. reported in
(2008) 12 SCC 364 (Coram: Dr Arijit
Pasayat, P. Sathasivam and Aftab Alam,
JJ.)
the
Hon'ble
Supreme
Court
propounded that the intention of the
legislature is to be gauged from the
language used in a statute and attention
must be paid to what has been said and also
to what has not been said. Relevant portion
from the aforesaid judgment is extracted
below -

"17. Words and phrases are
symbols that stimulate mental references to
referents. The object of interpreting a
statute is to ascertain the intention of the
legislature enacting it. (See Institute of
Chartered Accountants of India v. Price
Waterhouse [(1997) 6 SCC 312 : AIR 1998
SC 74] .) The intention of the legislature is
primarily to be gathered from the language
used, which means that attention should be
paid to what has been said as also to what
has not been said. As a consequence, a
construction which requires for its support,
addition or substitution of words or which
results in rejection of words as meaningless
has
to
be
avoided.
As
observed
in Crawford v. Spooner [(1846) 6 Moo PC
1 : 13 ER 582] , courts cannot aid the
legislatures' defective phrasing of an Act,
we
cannot
add
or
mend,
and
by
construction make up deficiencies which
are
left
there.
(See State
of
Gujarat v. Dilipbhai
Nathjibhai
Patel [(1998) 3 SCC 234 : 1998 SCC (Cri)
737 : JT (1998) 2 SC 253] .) It is contrary
to all rules of construction to read words
into an Act unless it is absolutely necessary
to do so. [See Stock v. Frank Jones (Tipton)
Ltd. [(1978) 1 WLR 231 : (1978) 1 All ER
948 (HL)] ] Rules of interpretation do not
permit courts to do so, unless the provision
as it stands is meaningless or of doubtful
meaning. Courts are not entitled to read
words into an Act of Parliament unless
clear reason for it is to be found within the
four corners of the Act itself. (Per Lord
Loreburn, L.C. in Vickers Sons and Maxim
Ltd. v. Evans [1910 AC 444 (HL)] quoted
in Jumma
Masjid v. Kodimaniandra
Deviah [AIR 1962 SC 847] .)

18. The question is not what may
be supposed and has been intended but
what has been said. 'Statutes should be
construed, not as theorems of Euclid',
Judge Learned Hand said, 'but words must
be construed with some imagination of the
purposes
which
lie
behind
them'.
(See Lenigh
Valley
Coal
Co. v. Yensavage [218 FR 547] .) The view
was reiterated in Union of India v. Filip
Tiago De Gama of Vedem Vasco De
Gama [(1990) 1 SCC 277 : AIR 1990 SC
981] (SCC p. 284, para 16).

19.
In D.R.
Venkatachalam v. Transport
Commr. [(1977) 2 SCC 273 : AIR 1977 SC
842] it was observed that courts must avoid
the danger of a priori determination of the
meaning of a provision based on their own
preconceived
notions
of
ideological
784 INDIAN LAW REPORTS ALLAHABAD SERIES
structure or scheme into which the
provision to be interpreted is somewhat
fitted. They are not entitled to usurp
legislative function under the disguise of
interpretation.

20. While interpreting a provision
the court only interprets the law and
cannot legislate it. If a provision of law is
misused and subjected to the abuse of the
process of law, it is for the legislature to
amend, modify or repeal it, if deemed
necessary. (See CST v. Popular Trading
Co. [(2000) 5 SCC 511] ) The legislative
casus omissus cannot be supplied by
judicial interpretative process.

21.
Two
principles
of
construction-one
relating
to
casus
omissus and the other in regard to reading
the statute as a whole-appear to be well
settled.