Heard Sri C.B.Pandey, learned counsel for the revisionist , Sri Sanjay Tripathi Advocate assisted by Sri Anil K. Tripathi learned counsel for the respondents.
Facts in brief of the present case are that the Amravati Sahakari Grih Nirman Samiti Ltd., Lucknow (hereinafter referred to as the Act) is a primary cooperative housing society registered under the Provisions of U.P. Cooperative Societies Act, 1965 and U.P. Cooperative Societies Rules, 1968. The said samiti owned certain plots and one of the plot is plot no.7 allotted to Shri Shyam Lal Kapoor/respondent no.1 vide resolution no.4 dated 27.1.1980 passed by the Committee of Management of the Samiti/respondent no.3.
On 14.10.1988, the Committee of Management/Samiti issued a notice to Shri Shyam Lal Kapoor directing him to complete the certain formalities and also to deposit the development charge amounting to Rs.61,100/- for regularization of allotment and execution of sale deed, the said notice has been issued as per resolution dated 14.10.1988 of the Administrator,but Shri Shyam Lal Kapoor did not respond to the said notice. So the then, Administrator of the Samiti (Shri B. B. Sati, Cooperative Officer (Housing) in its meeting held on 29.7.1989 and by resolution no.1, cancelled the allotment of plot no.7 in favour of Shri Shyam Lal Kapoor.
Thereafter, in a general body, meeting of the Samiti held on 17.2.1991, the resolution no.1 dated 29.7.1989 for cancelling the allotment of plot no.7 in favour of Shri Shyam Lal Kapoor was approved. In the said meeting, Shri Shyam Lal Kapoor was also present.
After cancellation of allotment of Shri Shyam Lal Kapoor, the administrator of the Samiti vide resolution no.4 dated 23.6.1992 took a decision to allot plot no.7 in favour of the appellant and directed that after completing all the formalities, the Secretary shall execute and register the sale deed of plot no.7 in favour of the appellant. Thereafter, on 28.8.1992, the sale deed in respect of the plot no.7 in favour of the appellant/revisionist i.e. Chandra Shekhar Singh was executed and registered by the Secretary of the Samiti after execution of the sale deed of plot no.7 in favour of the appellant/revisionist, constructed his house in which he is living having registered as 1/7 Shivsthali, 1 Faizabad Road, Lucknow.
Subsequently, on 5.11.2013, Shri Shyam Lal Kapoor filed an arbitration case seeking declaration of the sale deed dated 28.8.1992 executed by the Samiti in favour of the appellant/revisionist is illegal so the same be set aside and the Samiti be directed to execute the sale deed in his favour in respect of plot no.7.
The Deputy Housing Commissioner/Arbitrator considered the dispute raised by Shri Shyam Lal Kapoor as per the provisions of Section 70/71 of the Act and by means of the impugned judgment award dated 26.3.2004, cancelled the sale deed, executed in favour of the revisionsit.
Aggrieved by the same, revisionist filed a statutory appeal before the Appellate Tribunal, dismissed by order dated 31.1.2004 against which review was filed, was also dismissed.
Thereafter, after executing the award given by the arbitrator dated 26.3.2004, Execution Case No.37 of 2007 has been filed in which an objection under Section 47 C.P.C. filed by the revisionist, rejected ex-parte by an order dated 8.11.2010 passed by Executing Court on the ground that objection could not have been raised under Section 47 of the Code of Civil Procedure and ought to have been raised under Section 34 of the Arbitration Act in view the judgment given in the case of State of U.P. and another vs. Sadhu Ram Mittal 2006 (5) ALJ 215.
On 7.10.2011, an application under Section 151 along with Section 5 of the Limitation Act has been moved by Shri Chandra Sekhar Singh/Judgmment Debtor/Objector for recall of the order dated 8.11.2010 by which his objection under Section 47 C.P.C. has been rejected.
Accordingly, Misc. Case No.337 of 2011 "Chandra Shekhar Singh vs. Shyam Lal Kapoor" has been registered, dismissed by order dated 25.5.2012 by the Executing Court/District Judge, Lucknow with the following observations :-
"Moreover, the case of Savitri Singh vs. U.P. Awas Evam Vikas Praishad, Lucknow through its Secretary and others (Misc. Single No.3877 of 2010) has not been decided finally. In addition to it, I am to say that the objector also had taken same objection as to the jurisdiction of the Tribunal and of the Deputy Registrar in the proceedings before them. It is correct to say that question of jurisdiction may also be seen and looked into the execution proceedings. But, in view of the observations of Hon'ble the High Court in the case of Kiran Devi vs. The Sahayak Awas Ayukt Evam Sahayak Nibandhak U.P. Awas Evam Vikas parishad and others, 1991 AWC page 917 the objection of jurisdiction preferred by the objector is not sustainable. Furthermore, Hon'ble Supreme Court in the case of Damodaran Pillai and others vs. Indian Bank 2005 (7) SCC page 300 has been pleased to hold that in a proceedings arising out of order-21 CPC, an application under section 5 of the Limitation Act is not main and inherent power of the court cannot be exercised and the limitation period under Rule 106 (3) of Order-21.
On the basis of the discussion made above, the objections under section 47 CPC are found not maintainable as well as they not have any force and liable to be dismissed. Consequently, Misc. Case No.337-C of 2011, Misc. Case No.163-c of 2012 and Misc. Case No.285-C of 2009 are also liable to be dismissed with costs.
Accordingly, Misc. Case No.337-C of 2011, Misc. Case No.163-c of 2012 and Misc. Case No.285-C of 2009 are dismissed with costs of Rs.2,000/-, payable to the decree-holder."
Thereafter, an application under Section 114 CPC read with Order 47 Rule 1 of the CPC has been moved for review of the order dated 25.05.2012, in which an order dated 31.05.2012 passed, the relevant portion quoted herein below :-
"The application moved for review of the judgment is hereby allowed only to the extent of correction of citing of the fact in the judgment to the effect that as and where, in the judgment dated 25.05.2012, the case of Srimati Kiran Devi vs. Sahayak Avas Ayukta, 1991 ALJ 904, relied on by the applicant, is written, the same may be read as this judgment of Srimati Kiran Devi vs. Sahayak Avas Ayukta, 1991 ALJ 904 has been relied upon by opposite party, Shyam Lal Kapoor. The rest of the relief is refused."
Aggrieved by the said fact, the present revision has been filed challenging the order dated 25.05.2012 and 31.05.2012 as contained in Annexure Nos.1 and 2 respectively and also for quashing the award dated 26.3.2004 as well as the appellate order dated 31.1.2007.
I have heard learned counsel for parties and gone through the records.
In order to decide the controversy in the present case, it will be appropriate to go through the certain provisions as provided under U.P. Co-operative Societies Act, 1965.
"70. Disputes which may be referred to arbitration.-
(1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises-
(a) among members, past members and person claiming through members, past members and deceased members ; or
(b) between a member, past member or any person claiming through a member, past member or deceased member, and the society, its committee of management or any officer, agent or employee of the society, including any past officer, agent or employee ; or
(c) between, the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society; or
(d) between a co-operative society and any other co-operative society or societies;
such dispute shall be referred to the Registrar for action in accordance with the provisions of this Act and the rules and no court shall have jurisdiction to entertain any suit or other proceeding in respect of any such dispute:
Provided that a dispute relating to an election under the provisions of this Act or rules made thereunder shall not be referred to the Registrar until after the declaration of the result of such election.
(2) For the purpose of sub-section (1), the following shall be deemed to be included in dispute relating to the constitution, management or the business of a co-operative society, namely -
(a) claims for amounts due when a demand for payment is made and is either refused or not complied with whether such claims are admitted or not by the opposite party;
(b) a claim by a surety against the principal debtor where the society has recovered from the surety and amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor or whether such debt or demand is admitted or not ;
(c) a claim by a society for any loss caused to it by a member, officer, agent, or employee including past or deceased member, officer, agent, or employee, whether individually or collectively and whether such loss be admitted or not; and
(d) all matters relating to the objects of the society mentioned in the bye-laws as also those relating to the election of office-bearers.
(3) If any question arises whether a dispute referred to the Registrar under this section is a dispute relating to the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court."
"71. Reference of dispute to arbitration - (1) On receipt of a reference under sub-section (1) of Section 70, the Registrar may, subject to the provisions of the rules, if any-
(a) decide the dispute himself or
(b) refer it for decision to an arbitrator appointed by him, or
(c) refer it, if the parties so request in writing, for decision to a board of arbitrators consisting of the three persons to be appointed in the prescribed manner.
(2) The Registrar may, for reasons to be recorded, withdraw any reference made under clause (b) or (c) of sub-section (1) and refer it to another arbitrator or board of arbitrator or decide it himself.
(3) The Registrar, the arbitrator or the board of arbitrators, to whom a dispute is referred for decision under this section may, pending the decision of the dispute make such interlocutory orders including attachment of property as he or they may deem necessary in the interest of justice.
(4) The decision given by the Registrar, the arbitrator or the board of arbitrators under this Section shall hereinafter be termed as award.
(5) The procedure to be followed by the Registrar, the arbitrator or the board of arbitrators in deciding a dispute and making an award under this section shall be as may be prescribed.
92. Execution of certain orders and awards -
Every award made under Section 71, and capable of execution in the manner provided below, and every order so capable of execution made by the Registrar under Section 67 or sub-section (2) of Section 68 or under Section 91, or by the liquidator under Section 74 or by an appellate authority on appeal under Section 97 or 98 or on review under Section 99 or as an interlocutory order under Section 100 or a certificate for recovery issued under Section 95-A shall, if not carried out, be executed-
(a) in the manner provided by law for the time being in force for the recovery of arrears of land revenue :
Provided that an application for the recovery of any such sum is made to the Collector and accompanied by a certificate signed by the Registrar or any person authorized by him in this behalf :
Provided further that such application is made within 12 years from the date fixed for payment in the order or award and if no such date is fixed, from the date of the order or award, as the case may be ; or
(b) by the Registrar or any other person subordinate to him and empowered by him in this behalf, by attachment and sale or sale without attachment of any property of the person or the cooperative society against whom the order or award has been made ; or
(c) by the civil court having jurisdiction over the matter as if the order or award were the decree of that court."
As stated above, an award dated 26.3.2004 has been passed by the Arbitrator under the provisions of U.P. Co-operative Societies Act, 1965 which has been upheld by the appellate authority. Thereafter, an Execution Case No.37 of 2007 has been filed in which an objection under Section 47 C.P.C. has been filed by the revisionist, rejected ex-parte by an order dated 8.10.2011.
Subsequently, an application has been moved by the revisionist/Chandra Sekhar Singh for recall of the ex parte order dated 8.10.2011 under Section 151 C.P.C. along with under Section 5 of the Limitation Act registered as Application No.-A3, rejected by means of the order dated 25.5.2012 against which review has been filed by the appellant, rejected by an order dated 31.5.2012.
Thus, it is not in dispute in the present matter that an award dated 26.3.2004 has been passed by the Arbitrator as per the provisions of U.P. Co-operative Societies Act, 1965, thereafter, an Execution Case No.37 of 2007 has been filed by Shri Shyam Lal Kapoor (now deceased) substituted by his legal heirs, namely Ms. Kalpana Kapoor and Sri Vishwanath Mehrotrain which an application under Section 47 C.P.C. moved by revisionist, rejected ex parte vide order dated 8.10.2011 passed by the executing court taking into consideration the law as laid down by this Court in the case of State of U.P. and another vs. Sadhu Ram Mittal 2006 (5) ALJ 215, the relevant portion is quoted herein below :-
"In Krishna Kumar Mundhra vs. Narendra Kumar Anchalia 2004 (2) Arb LR 469 (Calcutta), the Calcutta High Court has held that the provisions contained in Section 34 of the Arbitration and Conciliation Act are similar to Section 47 of the CPC and Section 34 restricts the grounds of challenge. Therefore, Section 47 of the Code of Civil Procedure cannot be attracted, despite provisions contained in Section 36 in respect of an award when the same is ought to be executed thereunder. If section 47 of the CPC is to be attracted then the restrictions provided in Section 34 of the Act would be redundant, that is why the Legislature in its wisdom thought if fit to incorporate the scope similar to Section 47 of the Code of Civil Procedure, in Section 34 of the Arbitration Act in order to bring finality before the decree becomes executable. The object of the Arbitration Act is directed towards speedy hazard free finality with a view to avoid long drawn procedure based on technicalities. Thus I find that no illegality has been committed by the court below in passing the impugned order. This revision has no merit and is dismissed with costs."
From the perusal of the said judgment, the position which emerges out is that the controversy involved in the said matter is under the Arbitration and Conciliation Act, 1996 in which an award has been given by the Arbitrator. So, keeping in view the said fact as well as provisions of Section 34 of the said Act, this Court has held that the objection under Section 47 of the Code of Civil Procedure is not maintainable.
However, in the present case, the said position does not exit because admittedly the award dated 26.3.2004 has been passed by the Arbitrator under the provisions of U.P. Co-operative Societies Act, 1965. Subsequently, the same has been put to execution in view of the provisions of Section 92 (C) of the Act which reads as under :-
"by the civil court having jurisdiction over the matter as if the order or award were the decree of that court.".
Decree is defined under Section 2(2) of the Code of Civil Procedure :-
"Decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within 2 [***] section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default."
And, for an adjudication to be a decree three essential conditions are necessary, namely : (i) There must have been an adjudication in a suit. (ii) The adjudication must have determined the rights of the parties in respect of, or any of the matters in controversy. (iii) Such determination must be a conclusive determination resulting in formal expression of the adjudication. Once the matter in controversy has received judicial determination, the suit results in a decree either in favour of the plaintiff or in favour of the defendant. (See (See Diwan Brothers v. Central Bank of India A.I.R. 1976 S.C. 1503 and Ratansingh v. Vijaysingh A.I.R. 2001 S.C. 279 and R. Rathinavel Chettiar v. V. Sivaraman J.T. (1999) 2 S.C. 468). So the award dated 26.3.2004 given by the arbitrator as per the provisions of Section 70/71 read with Section 92(c) of the U.P. Cooperative Societies Act,1965 comes within the ambit and scope of the decree.
Further, the object of Section 47 of Code of Civil Procedure being to provide cheap and expeditious remedy for determination of certain questions in execution proceedings without recourse to a separate suit and to prevent needless and unnecessary litigation, S. 47 must be construed liberally so as to empower the Court to determine all such questions which do not fall outside the scope and purview of the section.
The two essential ingredients of Section 47 (1) are : (i) it should be a question relating to the execution, discharge or satisfaction of the decree; and (ii) it had arisen between the parties to the suit in which the decree was made. The fundamental principle is that in order to be a "party" the plaintiff must have a cause for relief and the defendant must be the person against whom the cause is sought to be adjudicated; if no such claim is made or arises a person even if joined in the array of parties may not be a "party" to the suit. (See Francis v. Joseph Scaria (1992) 1 Ker. L.J. 65).
Thus, under Section 47 C.P.C., all questions relating to the execution, discharge or satisfaction of the decree have to be determined by the executing court.
In addition to the above said facts, as the order dated 8.10.2011 is an ex parte order, so the same is not sustainable because it is a golden principle of law that if ex- parte order has been passed against a person and he has got no opportunity to put forward his case then the said order will be arbitrary in nature, in contravention of principle of natural justice and fair play , liable to be set aside.
Thus, keeping in view the said facts, an award dated 26.3.2004 which has been put to execution by Shri Shaym Lal Kapoor (now deceased) by way of Execution Case No.37 of 2007 in which objection filed by the revisionist/Chandra Sekhar Singh is maintainable and the ex-parte order dated 8.10.2011 passed by the executing court thereby rejecting the objection filed by revisionist/Chandra Sekhar Singh is not maintainable under Section 47 C.P.C. is an order, contrary to law.
Further, in the present case, for recall of the ex-parte order dated 8.11.2010, an appellant/revisionist has moved an application under Section 151 C.P.C. along with Section 5 of the Limitation Act, dismissed by order dated 25.5.2012 against which review filed by the appellant/revisionist, was also dismissed by order dated 31.5.2012. And from the perusal of the order dated 25.5.2012, the position which emerges out is that while rejecting the same, the court below has placed reliance on the judgment given by Hon'ble the Apex Court in the case of Damodaran Pillai and others vs. Indian Bank 2005 (7) SCC page 300 wherein it has been held that in a proceedings arising out of Order 21 C.P.C., an application under Section 5 of the Limitation Act is not maintainable and inherent power of the court cannot be exercised to extend the limitation period under Rule 106 (3) of Order 21 C.P.C.
Thus, once the court below had come to the conclusion that the application under Section 5 of the Limitation Act is not applicable then the further action on the part of the court below/executing court to proceed and reject the application moved by the revisionist/Chandra Sekhar Singh under Section 151 CPC for recall of the order dated 8.10.2011 on merit is contrary to law as laid down by Hon'ble the Apex Court in the case of State of Bihar and others vs. Arjun Prasad Rajak (2009) 13 SCC 775, wherein para no.2 held as under :-
"In filing the appeal, there was a delay of one year and eighteen days. Along with the appeal, an application under Section 5 of the Limitation Act had been filed to condone the delay in filing the appeal, if any. In the affidavit filed along with the application, the delay in filing the appeal had been explained. The High Court is of the view that the explanation offered in filing the appeal belatedly is not satisfactorily explained. Accordingly, it has declined to entertain the appeal. Yet again it has also found that there is no merit in the appeal."
Accordingly, in view of the above said facts and discussions made, the impugned order dated 25.5.2012, rejecting the appellant's application under Section 5 of the Limitation Act. and under Section 151 C.P.C. for recall of the ex parte order dated 8.10.2011 by which the objection filed by the petitioner has been rejected against the award dated 26.3.2004 holding therein that under Section 47 C.P.C. the same are not maintainable, is an order which is contrary to law, so the said order as well as consequential order dated 31.5.2012 by which revisionist's application under Section 114 CPC read with Order 47 Rule 1 of the CPC for review of the order date 25.5.2012 are contrary to law and liable to be set aside.
Further, so far as argument advanced by learned counsel for the parties on the point that whether the Arbitrator has got power under the provisions of U.P. Co-operative Societies Act, 1965 to cancel the sale deed dated 28.8.1992 executed in favour of the revisionist/Chandra Sekhar Singh as null and void is concerned, the said issue may be decided on merit by the executing court in Execution Case No.37 of 2007 in which the objection has been filed by the revisionist/Chandra Sekhar Singh under Section 47 C.P.C.
In the result, revision is allowed and the order dated 8.11.2010 passed in Execution Case No.37 of 2007 as well as order dated 25.5.2012 and 31.5.2012 passed in Misc. Case No.337-C of 2011 arising out of Execution Case No.37 of 2007 are set aside and the court below/executing court is directed to decide the objection filed by the revisionist under Section 47 C.P.C. on merit after hearing the parties concerned expeditiously.
Dated :18.2.2014 D.K.