Full Judgment
P.S. Narayana, J.
1. Heard Sri Ramachandra Prasad, Counsel representing the petitioner and Sri Purna Chander Rao, Counsel representing the respondent.
2. This Court ordered Notice Before Admission on 6-1-2006 and granted interim order for a limited period which was subsequently extended.
3. The revision petitioner herein/ judgment-debtor/defendant filed E.A. No. 256/ 2005 in E.P.No. 717/2004 in O.S.No. 400/97 on the file of Principal Junior Civil Judge, Warangal under Sections 47 and 151 of the Code of Civil Procedure (hereinafter in short referred to as 'Code' for the purpose of convenience) praying for dismissal of the E.P. as having become infructuous as the decree sought to be executed is a nullity. The main ground of attack is that the matter was referred to arbitration to the elders of Meemohalla Committee, Warangal prior to the institution of the suit and the Award made became final and binding on the parties by virtue of. Section 35 of the Arbitration and Conciliation Act 1996 (hereinafter in short referred to as 'Act' for the purpose of convenience) The stand taken by the petitioner is that in instead of enforcing the aforesaid Award in the manner laid down under Section 36 of the Act, the decree was obtained and the same is put into execution. Specific stand was taken that in the light of Section 5 of the Act, the decree cannot be enforced. The learned Judge after recording reasons having observed that this question had not been raised or agitated in the suit, came to the conclusion that there are no merits in the application and accordingly dismissed the same. Aggrieved by the said order the present civil revision petition is preferred.
4. Sri Ramachandra Prasad, the learned Counsel representing the revision petitioner would maintain that in the light of Section 5 of the Act inasmuch as an arbitral Award was made between the parties on reference by Meemohalla Committee, Warangal the same is binding on the parties and the Civil Court could not have entertained this suit at all. The remedy is elsewhere to enforce the arbitral Award in accordance with the provisions of the Act. The learned Counsel had taken this Court through the relevant provisions of the Act and also Section 47 of the Code and placed strong reliance on a decision of the Apex Court in Sarwan Kumar v. Madan Lal Aggarwal : [2003]1SCR918 .
5. Per contra, Sri Puma Chander Rao, the learned Counsel representing the respondent would maintain that this is an application which had been thought of only to procrastinate the litigation and absolutely there are no bona fides. The learned Counsel also would maintain that the said objection was not taken at any stage whatsoever. The matter in fact was carried by way of appeal and also second appeal and the same had attained finality and hence at this distant point of time it cannot be contended that the decree made by the Court is without jurisdiction. The learned Counsel also placed strong reliance on Soora Ramachandra Reddy (died) and Ors. v. G. Paradesi and Ors. : 2005(3)ALT420 .
6. Heard both the Counsel.
7. The revision petitioner moved an application under Section 47 read with Section 151 of the Code to dismiss. The E.P. as having become infructuous on the ground that the decree in O.S. No. 400/97 is a nullity in the light of the arbitral Award made by the elders of Meemohalla Committee, Warangal prior to the institution of the suit. It is stated that the said Award became final and binding by virtue of Section 35 of the Act and the same may have to be enforced in accordance with the provisions of Section 36 of the Act. The main objection is that in a case where arbitral Award was made, the jurisdiction of the Civil Court is barred by virtue of Section 5 of the Act. Section 5 of the Act dealing with Extent of judicial intervention specifies:
Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.
On a careful reading of the language of Section 5 of the Act, it cannot be said that the jurisdiction of the Civil Court is barred to entertain a suit. Be that as it may, this aspect need not detain this Court any further or any longer for the reason that the matter was agitated upto second appeal and at no point of time this objection had been taken and for the first time the said objection is being taken by moving the present application under Section 47 read with Section 151 of the Code. The same is in fact impermissible. There cannot be any dispute or quarrel relating to the proposition laid down by the Apex Court in the decision Sarwan Kumar v. Madan Lai Aggarwal, (supra). In fact this Court had an occasion to consider a similar question in a slightly different context in the decision Soora Ramachandra Reddy (died) and Ors. v. G. Paradesi and Ors. (supra). In the light of the reasons which had been recorded in detail by the learned Judge and also in the light of the language of Section 5 of the Act aforesaid, in the absence of a plea being taken or objection being raised either in the suit or in the appeal or in the second appeal, the petitioner cannot be permitted to raise such a ground by way of an application under Section 47 of the Code. This Court is satisfied that the application is not a bona fide one and the reasons recorded by the learned Judge need not be found fault in any way. Accordingly, the impugned order is hereby confirmed.
8. The civil revision petition shall stand dismissed, with costs.