SANJAY GUPTA v. SURESH KUMAR MISHRA AND

Judgment

1. The present petition has been filed by the petitioner challenging an order dated 16.05.2025, whereby an application filed by the petitioner for dismissal of the execution proceedings was rejected.

2. The facts leading to the filing of the present petition in brief are that

the parties to the dispute entered into a builders agreement on 10.11.1996. In pursuance to the agreement executed, some disputes arose and the matter was referred for arbitration by invoking Section 11(6) of the Arbitration and Conciliation Act. The Arbitrator pronounced his award on

12.01.2007 against the petitioner and 19 other persons. Thereafter an application was filed under Section 34 of the Arbitration and Conciliation Act, which was registered as Regular Suit No.11 of 2007 which came to be dismissed on 25.07.2012. Subsequently, an appeal has been preferred under Section 37, in which, interim orders were passed initially but the same was dismissed in default and the restoration application filed was 2 also dismissed. The second restoration application was also dismissed for non-prosecution and a third restoration application is said to be pending.

3. As, the award was passed and the objections under Section 34 of the Arbitration and Conciliation Act were dismissed, an application for execution of the award was filed on 03.11.2017, in which, the objections were filed under Section 47. In terms of the award, the award was against the immovable as well as movable assets, which was in the nature of a money decree. In the objections filed under Section 47, all the objections were taken including insufficiency of the stamp duty and the said objections came to be rejected. In the said writ petition, the specific contention with regard to the scope of objections under Section 47 in the light of the execution pertaining to arbitration matter was considered. The Court following the earlier judgments, clearly held that the objections which can be taken under Section 34 of the Arbitration and Conciliation Act cannot be taken in the execution proceedings taking resort to Section 47 of the Act. The Court however had said the objection under Section 47 would be maintainable only if the execution is beyond the award of the Arbitrator. In that context, the writ petition was partly allowed and the matter was remanded directing the executing court to decide the said part of the objection under Section 47 wherein it was stated that the execution of the award was beyond what was awarded by the Arbitrator. No other liberty was granted. Despite the fact that no opportunity was granted and the issue with regard to the scope of Section 47 in the arbitration proceedings was settled inter se in between the parties. However, two objections were filed by the petitioner on 27.05.2024 and 23.09.2024, which were registered as Paper Nos.C-81 and C-88, whereby the dismissal of execution proceedings was sought as also the restitution of immovable property. In terms of the said two objections with regard to non-registration of the award and, in the Application No.C-88, it was argued that the transaction in terms of the agreement was contrary to the mandate of Section 5-A of the Societies Registration Act. The said 3 objections were objected by the decree holder mainly on the ground that after remand, the matters to be decided as specified in the judgment dated

05.07.2023 passed by this Court in Matters Under Article 227 No.2511 of

2023. It was also stated that the objections filed by the judgment debtor were barred by the principles of res judicata. The said objections were rejected by the executing court vide impugned order dated 16.05.2025. The trial court in its order observed that the decree in respect of the immovable property has already been executed. The specific objection with regard to Section 5-A of the Societies Registration Act was rejected on the ground that all these questions have to be decided under Section 34 of the Arbitration and Conciliation Act and thus the same could not be raised at the time of the execution proceedings.

4. Challenging the said order, the Counsel for the petitioner extensively argues that in terms of the agreement, which is on record as Annexure-3, it was noticed that the owner of the property had given the land in dispute to a Society with permission to raise constructions and inter se in between, the landlord and the said Society, proceedings had culminated in the judgment of the Hon’ble Supreme Court wherein it was held that the license granted in favour of the Society was an irrevocable license vide judgment in the case of Ram Swarup Gupta v. Bishun Narain Inter College:(1987) 2 SCC 555. He argues that in terms of the provisions contained in Section 5-A of the Societies Registration Act, any transfer of property without the permission of the District Judge is void and thus, prior to execution of the agreement, the Society had not taken the permission, thus, the entire agreement was void being contrary to the statutory provisions contained under Section 5-A of the Societies Registration Act. Section 5-A reads as under: “5-A. Restriction on transfer of property. (1) Notwithstanding anything contained in any law, contract or other instrument to the contrary, it shall not be lawful for the governing body of a society registered under this Act or any 4 of its members to transfer, without the previous approval of the Court, any immovable property belonging to such society. (2) Every transfer made in contravention of sub-section (1) shall be void. Explanation 1-The word "Court" shall have the meaning assigned to it in Section 13. Explanation II. The expression "transfer" shall for the purposes of this section mean :- (a) a mortgage, charge, sale, gift, or exchange; (b) lease for a term exceeding five years; or (c) "irrevocable licence."”

5. The said contention was rightly repelled by the executing court as all these issues cannot be gone into at the stage of execution. The same could be raised in objections under Section 34 even otherwise, even if for the sake of argument, it is construed that the objections could be raised with regard to the statutory bar of Section 5-A of the Societies Registration Act, there is no contravention as in terms of the stipulations contained in the agreement, the Society had only relinquished its right which would not fall within the meaning of transfer as is clear from the Explanation-II of Section 5-A of the Societies Registration Act. The objections were also not entertainable in view of the fact that the earlier objections which led to passing of the judgment dated 05.03.2023 by this Court, the second objection would be barred by the principles of res judicata and thus were rightly rejected. No good ground for interference is made out.

6. The petition lacks merit and is accordingly dismissed. Date:04.08.2025 akverma [Pankaj Bhatia, J.] ASHOK KUMAR VERMA High Court of Judicature at Allahabad, Lucknow Bench

the parties to the dispute entered into a builders agreement on 10.11.1996. In pursuance to the agreement executed, some disputes arose and the matter was referred for arbitration by invoking Section 11(6) of the Arbitration and Conciliation Act. The Arbitrator pronounced his award on

12.01.2007 against the petitioner and 19 other persons. Thereafter an application was filed under Section 34 of the Arbitration and Conciliation Act, which was registered as Regular Suit No.11 of 2007 which came to be dismissed on 25.07.2012. Subsequently, an appeal has been preferred under Section 37, in which, interim orders were passed initially but the same was dismissed in default and the restoration application filed was 2 also dismissed. The second restoration application was also dismissed for non-prosecution and a third restoration application is said to be pending.

3. As, the award was passed and the objections under Section 34 of the Arbitration and Conciliation Act were dismissed, an application for execution of the award was filed on 03.11.2017, in which, the objections were filed under Section 47. In terms of the award, the award was against the immovable as well as movable assets, which was in the nature of a money decree. In the objections filed under Section 47, all the objections were taken including insufficiency of the stamp duty and the said objections came to be rejected. In the said writ petition, the specific contention with regard to the scope of objections under Section 47 in the light of the execution pertaining to arbitration matter was considered. The Court following the earlier judgments, clearly held that the objections which can be taken under Section 34 of the Arbitration and Conciliation Act cannot be taken in the execution proceedings taking resort to Section 47 of the Act. The Court however had said the objection under Section 47 would be maintainable only if the execution is beyond the award of the Arbitrator. In that context, the writ petition was partly allowed and the matter was remanded directing the executing court to decide the said part of the objection under Section 47 wherein it was stated that the execution of the award was beyond what was awarded by the Arbitrator. No other liberty was granted. Despite the fact that no opportunity was granted and the issue with regard to the scope of Section 47 in the arbitration proceedings was settled inter se in between the parties. However, two objections were filed by the petitioner on 27.05.2024 and 23.09.2024, which were registered as Paper Nos.C-81 and C-88, whereby the dismissal of execution proceedings was sought as also the restitution of immovable property. In terms of the said two objections with regard to non-registration of the award and, in the Application No.C-88, it was argued that the transaction in terms of the agreement was contrary to the mandate of Section 5-A of the Societies Registration Act. The said 3 objections were objected by the decree holder mainly on the ground that after remand, the matters to be decided as specified in the judgment dated

05.07.2023 passed by this Court in Matters Under Article 227 No.2511 of

2023. It was also stated that the objections filed by the judgment debtor were barred by the principles of res judicata. The said objections were rejected by the executing court vide impugned order dated 16.05.2025. The trial court in its order observed that the decree in respect of the immovable property has already been executed. The specific objection with regard to Section 5-A of the Societies Registration Act was rejected on the ground that all these questions have to be decided under Section 34 of the Arbitration and Conciliation Act and thus the same could not be raised at the time of the execution proceedings.

4. Challenging the said order, the Counsel for the petitioner extensively argues that in terms of the agreement, which is on record as Annexure-3, it was noticed that the owner of the property had given the land in dispute to a Society with permission to raise constructions and inter se in between, the landlord and the said Society, proceedings had culminated in the judgment of the Hon’ble Supreme Court wherein it was held that the license granted in favour of the Society was an irrevocable license vide judgment in the case of Ram Swarup Gupta v. Bishun Narain Inter College:(1987) 2 SCC 555. He argues that in terms of the provisions contained in Section 5-A of the Societies Registration Act, any transfer of property without the permission of the District Judge is void and thus, prior to execution of the agreement, the Society had not taken the permission, thus, the entire agreement was void being contrary to the statutory provisions contained under Section 5-A of the Societies Registration Act. Section 5-A reads as under: “5-A. Restriction on transfer of property. (1) Notwithstanding anything contained in any law, contract or other instrument to the contrary, it shall not be lawful for the governing body of a society registered under this Act or any 4 of its members to transfer, without the previous approval of the Court, any immovable property belonging to such society. (2) Every transfer made in contravention of sub-section (1) shall be void. Explanation 1-The word "Court" shall have the meaning assigned to it in Section 13. Explanation II. The expression "transfer" shall for the purposes of this section mean :- (a) a mortgage, charge, sale, gift, or exchange; (b) lease for a term exceeding five years; or (c) "irrevocable licence."”

5. The said contention was rightly repelled by the executing court as all these issues cannot be gone into at the stage of execution. The same could be raised in objections under Section 34 even otherwise, even if for the sake of argument, it is construed that the objections could be raised with regard to the statutory bar of Section 5-A of the Societies Registration Act, there is no contravention as in terms of the stipulations contained in the agreement, the Society had only relinquished its right which would not fall within the meaning of transfer as is clear from the Explanation-II of Section 5-A of the Societies Registration Act. The objections were also not entertainable in view of the fact that the earlier objections which led to passing of the judgment dated 05.03.2023 by this Court, the second objection would be barred by the principles of res judicata and thus were rightly rejected. No good ground for interference is made out.

6. The petition lacks merit and is accordingly dismissed. Date:04.08.2025 akverma [Pankaj Bhatia, J.] ASHOK KUMAR VERMA High Court of Judicature at Allahabad, Lucknow Bench