Executing Court Cannot Go Beyond Decree Of Civil Court: Karnataka HC
Bench of Justice MG Uma noted that even if the award passed by the Arbitrator is to be considered as an award, the First Appellate Court accepted the award and passed a decree, thereby the award merged with the decree in question
The Karnataka High Court recently held that when Civil Court passes decree granting relief of partition and separate possession and decree holder seeks the aid of Executing Court for executing the decree, it is settled position of the law that the Executing Court cannot go beyond the decree of Civil Court.
Bench of Justice MG Uma noted that even if the award passed by the Arbitrator is to be considered as an award, the First Appellate Court accepted the award and passed a decree, thereby the award merged with the decree in question.
The petitioner had filed the civil suit before the Trial court seeking partition and separate possession of his share in the schedule properties. The suit came to be decreed. The respondents (defendants) challenged the said judgment and decree by preferring an appeal before the High Court. In view of the change in jurisdiction of the case, the matter was remitted to the District Court. When the matter was pending before the Appellate Court, it thought fit to refer the dispute to the Arbitrator for amicable settlement between the parties. Accordingly, the parties amicably settled the dispute and the consent award came to be passed. The said award was placed before the First Appellate Court, which passed the decree based on the said award.
An execution petition was filed to execute the said award passed by the appellate court. The respondents who were the defendants in the suit, raised objections that the arbitral award was not drawn on the stamp paper and it was not registered and therefore, the same could not be executed before the Court. The said objections were considered by the Executing Court and passed the impugned order. Therefore, the decree holder preferred to invoke the writ jurisdiction of the Court.
The Court observed that, "The Hon'ble Apex Court considered various provisions of law under the Arbitration and Conciliation Act and formed an opinion that when the award affecting or purporting to affect the right, title or interest in immovable property, it must be registered under Section 17(1)(e) of the Registration Act and the unregistered award in such a case cannot be looked into by the Court, when the award is filed under Section 11 of the Arbitration and Conciliation Act of 1940."
The Court said that when First Appellate Court passes a decree and admittedly, the decree holder paid the required stamp duty on the decree drawn by the Civil Court, the Executing Court should have executed the decree without going into the correctness of the same as it is beyond its jurisdiction.
The writ petition came to be allowed with the above-mentioned observations.
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