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TMI Blog1998 (12) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... y the impugned common judgment. The Division Bench of the High Court held that the question of limitation regarding passing of the award decree was required to be examined by the executing court and consequently, passed a remand order directing learned Single Judge to decide the matter afresh. The impugned judgment also observed that the learned Single Judge should decide whether the arbitrator bad filed the award suo motu or at the instance of the award holder in the light of the decision of this Court in the case of Patel Motibhai Naranbhai and Anr. v. Dinubhai Motibhai Patel and Ors., reported in [1996]1SCR239 and other case law. 5. In order to appreciate the grievance of the decree-holder appellant in these appeals, it is necessary to look at relevant background facts. The appellant is said to have granted a short-term loan of ₹ 15 lacs to the respondent on 09.01.1985. The contention of the appellant was that the loan was to be repaid within two months with 24 per cent interest on the principal amount. The respondent disputed the said claim of the appellant and contended that the loan amount was payable after two years and the interest rate was also not 24 per cent. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention would not make the decree a nullity of without jurisdiction and hence the remand order passed by the Division Bench of the High Court was clearly unsustainable and amounted to usurpation of jurisdiction which in execution proceedings, the court had not got. Reliance was placed on judgments of this Court in support of this contention which we will refer to hereafter. 7. Shri Javali, learned senior counsel for the respondent-judgment debtor on the other hand submitted that the award and decree in question appeared to have been obtained in a very curious and surreptitious manner by the appellant, that the dispute was raised within two months of advancement of loan and within a few days the entire arbitration proceedings were over, that thereafter curiously enough no attempt was made by the appellant to get the award made rule of the court and years rolled by, and when after 4 years the arbitrator was made to file the award, that attempt would naturally be at the instance of the appellant, that such late filing of the award by the arbitrator could not have been made the subject matter of proceedings before the court for passing decree in terms thereof and that the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is true that this award decree was sought to be executed years thereafter. But the said delay on the part of the decree holder in executing the decree within the permissible period for limitation in execution of such decree cannot give any sustainable right to the judgment- debtor to challenge the execution proceedings on that ground. The contention of shri Javali, learned senior counsel for the respondent that the award was mock one and was not intended to be enforced can not be sustained as that stage has gone for the respondent. In execution proceedings such a contention requiring F the executing court to go behind the decree cannot be sustained. The question whether the award decree was filed by the arbitrator on his own or not was a mixed question of law and fact. The Division Bench in the impugned judgment itself has noted that if the award was filed by the arbitrator suo motu then the award decree cannot be said to be barred by limitation but if, p on the other hand, the award was filed by the arbitrator at the instance of the appellant-decree holder then the question of limitation would arise. The aforesaid observation of the Division Bench itself indicates that this i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri and Anr. v. Rabindra Nath Chakravarti, the Judicial Committee held that where a decree was passed upon an award made under the provisions of the A Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction, 11. The aforesaid decision of this Court squarely applies to the facts of the present case. This is not a case in which the award decree on the face of it was shown to be without jurisdiction. Even if the decree was passed beyond the period of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his fact situation, this Court allowed the appeal and set aside the award decree. It becomes clear that in the aforesaid decision the court was not concerned with the present fact situation where the award decree which was allegedly passed after expiry of limitation was sought to be challenged in collateral execution proceedings if the decree had become final. If the present proceedings had arisen against the award decree all these questions would have survived for consideration. But in the present case the award decree has become final and that too when the respondent-judgment debtor did not think it fit to contest the proceedings and did not contend that no decree could be passed. He cannot now, in execution proceedings, contend that the decree should be ignored as being a nullity. The Division Bench, with respect, failed to appreciate the correct scope and ambit of the ratio of the decision in the case of Patel Motibhai Naranbhai, (Supra). Consequently, the impugned judgment remanding the proceedings for consideration by the executing court in the light of the aforesaid decision of this Court cannot be sustained. Point No. (iii): 14. Then remains the question whether this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for the time being. This clearly indicates that the grant of second installment of ₹ 2 lacs which was made payable by the award on or before 15.10.1985 with interest from the date of first installment to the date of second installment was within the knowledge of the partners of the respondent firm even as early as on 17.10.1985 otherwise they would never have got an idea to pay the installment due on 15.10.1985. This shows that they were aware of the installments granted by the sole arbitrator, almost by the same time the award was passed in the year 1985 itself. If that is so, it must be held to be a mere excuse on the part of the respondent when it was contended in the execution proceedings that the respondent's partners had no idea or knowledge about the award or award decree. Under these circumstances, it is difficult to appreciate how the arbitration proceeding was a mock proceeding or that any fraud was committed on the respondent or the Court when the award decree came to be passed. These are all afterthoughts and they clearly indicate that the respondent having received the amount of ₹ 15 lacs under a promissory note as early as in 1985 did not think it f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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