Execution Case No. 75 of 2019 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 686 OF 2023 The Land Acquisition Officer and Competent Authority, Keonjhar …. Petitioner Mr.Manoj Kumar Mishra, Senior Advocate being assisted by Mr. Umesh Chandra Mohanty, Advocate Dillip Kumar Pati and others …. Opp. Parties -versus- Mr. Samir Kumar Mishra, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 27.06.2023 1. 1. 2. This matter is taken up through hybrid mode. Order dated 6th January, 2023 (Annexure-15) and 18th May, 2023 (Annexure-11) passed in Execution Case No 75 of 2019 are under challenge in this CMP, whereby learned District Judge, Keonjhar, vide order dated 6th January, 2023 (Annexure- 15), directed to the D.Hr. to file requisites for issuance of writ for execution of the award within seven days. Vide order dated 18th May, 2023 (Annexure-11), learned District Judge allowed an application filed by the Opposite Party-D.Hr. under Order XXI Rule 41(1) CPC directing the Petitioner-J.Dr. to remain present for examination and to produce documents such as running bank account books and details of other movable properties in the name of the J.Dr. Page 1 of 7 // 2 // 3.
Legal Reasoning
this Court in W.P.(C).No.34958 of 2021. This Court, vide order dated 23rd November, 2021 (Annexure-7), set aside the order passed by executing Court holding that there could not be execution when the award carries mistake. Assailing the same, the Opposite Party-D.Hr moved Hon’ble Supreme Court in SLP (Civil) No.919 of 2022, which was subsequently converted to
Arguments
Mr. Mishra, learned Senior Advocate submits that the Petitioner is the Competent Authority to adjudicate the claim for award of compensation for acquisition of land under the National Highways Act, 1956 (for brevity ‘the Act’). In the instant case, the Opposite Party filed Misc. (Arbitration) Case No. 13 of 2017 under Section 3-G(5) of the Act before the Arbitrator-cum-Collector, Keonjhar for redetermination of the land value against the award passed by the Competent Authority in LA Case No. 79 of 2017. By award dated 24th November, 2018 in ARB Case No.13 of 2017 (arising out of LA Case No.79 of 2017), the Petitioner was directed to recalculate the compensation and to pay the differential amount along with statutory benefit to the Opposite Party within one month, failing which the Opposite Party was held to be entitled to 9% interest on the differential compensation amount. Due to non-payment of the compensation amount as directed, the Opposite Party filed Execution Case No. 75 of 20192, which is pending in the Court of learned District Judge, Keonjhar. In the said Execution Case, the Petitioner-J.Dr. filed a petition, inter alia, to grant time for deposit of the decreetal amount stating that necessary approval is awaited for finalization of the award, which requires some time. Learned District Judge, holding that the award has been confirmed by the Supreme Court in Civil Appeal No.7412 of 2022 [arising out of SLP (Civil) No. 919 of 2022] restoring an order passed by the learned District Judge dated 2nd November, 2021 in the execution case, rejected the application and by order under Annexure-15 directed the D.Hr. to file requisites for Page 2 of 7 // 3 // execution of award within seven days. It is submitted that the Opposite Party-D.Hr. has furnished three bank accounts of the Petitioner from which the awarded amount can be paid to the Opposite Party-D.Hr. 3.1 In spite of the same, the Opposite Party-D.Hr. filed an application under Order XXI Rule 41(1) CPC for examination of the Petitioner-J.Dr. to disclose the running bank account for realization of the awarded amount. Although the Petitioner filed an application for time to file objection to the said application, learned District Judge rejecting such prayer by order under Annexure-11 under an erroneous impression that the Hon’ble Supreme Court has directed to execute the decree within 15 days, rejected the application. It further directed the Petitioner- J.Dr. to remain present in the Court on the date fixed for examination and to produce the running bank account books and details of other movable properties for realization of the awarded amount. Hence, this CMP has been filed. 4. It is his submission that when details of three bank accounts are available before the executing Court to realize the awarded amount, the Opposite Party-D.Hr. should not have filed an application under Order XXI Rule 41(1) CPC for examination of the J.Dr. There is no material on record to show that the awarded amount cannot be realized from the said three bank accounts, details of which have been furnished before the executing Court. Had the Petitioner been given an opportunity to file an objection, it could have brought these facts to the notice of the executing Court. Hence, he prays for setting aside the Page 3 of 7 // 4 // impugned orders under Annexure-15 and 11 respectively and to permit the Petitioner to file an objection to the petition under order XXI Rule 41(1) CPC. 5. Mr. Mishra, learned counsel for the Opposite Party- D.Hr. submits that the Petitioner-J.Dr. is playing tricks not to pay the awarded amount even if the same has been confirmed by this Court. Although no time limit has been fixed by Hon’ble Supreme Court, but in view of guidelines in the case of Rahul S. Shah Vs. Jinendra Kumar Gandhi and others, reported in (2021) 6 SCC 418, the Execution Case should be disposed of within a period of six months. If for any reason, it is not completed within the said period, the executing Court must assign reason thereto in writing. In the instant case, the Execution Case has been initiated since 2019 and it is continuing till date. The only objection raised by the Petitioner-J.Dr. for non-payment of the awarded amount is that the same is pending for approval before the Regional Officer. That possibly could be a ground to stall the Execution Proceeding. It is his submission that since the Petitioner has not assailed the order dated 6th January, 2023 (Annexure-15) in time, the same is no more available to be challenged in the CMP in view of the order passed under Annexure-11 directing the Petitioner-J.Dr. to remain present in Court for examination. 6. Even if an opportunity is given to the Petitioner-J.Dr. to file objection, the same will not improve its case as the grounds taken for non-payment of the awarded amount has already been rejected and the Opposite Party-D.Hr. has been directed to file Page 4 of 7 // 5 // requisites for execution of the award within seven days. He, therefore, submits that the impugned order warrants no interference and hence the CMP is liable to be dismissed. 7. Considering the rival contentions of the parties, this Court finds that the arbitration award has been passed on 24th November, 2018 in Misc. (Arbitration) Case No.13 of 2017. Undisputedly, the award passed in Misc. (Arbitration) Case No.13 of 2017 has already been confirmed vide order dated 24th March, 2020 (Annexure-2) passed by learned District Judge, Keonjhar in Arb (P) No.6 of 2019 filed under Section 34 of Arbitration and Conciliation Act, 1996 and the same order has subsequently been confirmed by this Court in W.P.(C). No. 37571 of 2020, vide judgment dated 23rd August, 2021 (Annexure-3). Subsequently, the Petitioner-J.Dr. assailed the executability of the decree/award, which was rejected by the executing Court. Assailing the same, the Petitioner-J.Dr. moved
Decision
Civil Appeal No.7412 of 2022 and disposed of setting aside the order passed by the Court and confirming the arbitration award with certain clarifications. Thereafter, the Execution Case No.75 of 2019 proceeded. Page 5 of 7 // 6 // 7.1 It is submitted by Mr. Mishra, learned Senior Advocate for the Petitioner that the Opposite Party has provided details of three bank accounts from which the awarded amount could be realized. It is also submitted that the provision under Order XXI Rule 41 CPC will come into play only when the awarded amount cannot be recovered from the aforesaid three bank accounts. Mr. Mishra, learned counsel for the Opposite Party-D.Hr., on the other hand, submits that once the J.Dr. is examined, the executability of the award from the said bank accounts can be verified. 8. Taking into consideration the entire scenario, this Court feels that the Petitioner-J.Dr will no way be aggrieved if the Competent Authority-cum-Special Land Acquisition Officer (NH-6) Project, Keonjhar is examined in Court under Order XXI Rule 41 CPC. On the other hand, it will expedite the process for realization of the awarded amount. Further, the prayer made in the petition under Order XXI Rule 41 CPC is squarely applicable to the present case, more particularly when the Petitioner-J.Dr. although is required to deposit the entire awarded amount, is avoiding to deposit the same. In view of the conduct of the Petitioner, it is required to find out the details of bank account and particulars of the movable properties of the Petitioner for satisfaction of the award. The Petitioner has left no stone unturned to avoid payment of the awarded amount. Ultimately, pursuant to the direction of the Hon’ble Supreme Court, as above, the Petitioner has no other option than to pay the awarded amount. Page 6 of 7 // 7 // 9. It further appears that the application under Order XXI Rule 41 (1) CPC (Annexure-9) was filed on 20th April, 2023 serving copy on learned counsel for the Petitioner. The same is apparent from the endorsement made on the petition under Annexure-9. Till 18th May, 2023, the Petitioner did not prefer to file any objection to the same. On the date it was posted for hearing, an application for adjournment was sought for to file objection to such petition. As such, learned District Judge has committed no error in rejecting the application and proceeded with the hearing of the petition under Annexure-9 on merit. 10. In that view of the matter, I find no infirmity in the impugned orders under Annexure-15 and 11. 11. Hence, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. Rojalin (K.R(K.R. Mohapatra) Judge . Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Jun-2023 17:39:35 Page 7 of 7