The Chief Engineer v. M/S Surendra Sales Corporation
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE ANANYA BANDYOPADHYAY CO No. 38 of 2025 The Chief Engineer ... Petitioner
Versus
M/S Surendra Sales Corporation ... Respondent For the petitioner : Mr.V.D. Sivabalan For the Respondent : Mr. Mohammed Tabraiz Heard on : November 7, 2025 Judgment on : November 10, 2025 Ananya Bandyopadhyay, J.
1.
The dispute between the parties pertaining to contract agreement No. CE(N)/PB/02 of 1997 - 1998 regarding the pipeline to be set up from Chouldari dam to Prothrapur including connected number works at Port Blair was referred to the sole Arbitrator in accordance to the agreement between the parties.
2.
The sole Arbitrator vide order dated 23rd of April, 2000 resolved the issue through an order passed in favour of the Respondent Corporation directing the petitioner to pay nearly 17 lakhs of rupees to the Respondent corporation.
3.
The petitioner filed an application under Section 34/37 of the Arbitration and Conciliation Act, 1996 against the aforesaid award dated 24.03.2007 accorded by the sole Arbitrator in arbitration case relating to the dispute in CA No. CE(N)/PB/02 of 1997 - 1998 on the ground mentioned therein challenging role of the Arbitrator and the erroneous award passed by the sole Arbitrator amongst other grounds.
4.
The Respondent Corporation filed other execution petition No. 02 of 2008 before the learned District Judge, Andaman & Nicobar Islands on 10.11.2008 seeking for execution of the award as aforesaid.
5.
However, after filing of the aforesaid execution petition, the decree holder sought for repeated adjournments on several dates.
6.
Subsequently, vide an order dated 15.02.2011, the learned District Judge granted an opportunity to the Decree Holder / Respondent herein to amend the execution petition for obtaining the decretal amount.
7.
However, from 10.08.2011 till 16.04.2015 on umpteen number of occasions the amendment of the execution petition was not accomplished.
8.
On 16.04.2015 a show cause was issued against the decree holder / Respondent vide order No. 59 seeking appropriate reply fixing the next date on 22.06.2015.
9.
From 22.06.2015 till 27.09.2016 several dates were fixed granting opportunity to the decree holder who failed to file petition for accommodation as well as reply to the show cause issued earlier.
10.
Subsequently, the execution petition was dismissed for default vide order dated 27.09.2016.
11.
The decree holder thereafter, filed a Misc. Judicial Application being No. M.J 01 of 2017 under Order IX Rule 9 of the Code of Civil Procedure on 26.12.2016 along with an application for condonation of delay under Section 5 of the Limitation Act. Though the application for restoration of the execution case No. 02 of 2008 was filed on 26.12.2016 the Respondent / Decree Holder appeared for the first time on 21.10.22.
12.
On 12.08.2024 the application filed for condonation of delay was allowed and the execution petition filed under Order IX Rule 9 of the Code of Civil Procedure in M.J No. 01 of 2017 arising out of other execution No. 02 of 2008 was allowed. 13.
The order of dismissal of the other execution No. 02 of 2008 was set aside and the same was restored to its original file and number.
14.
The petitioner being aggrieved by such order of restoration of the execution petition as aforesaid filed the instant revisional application claiming that the application filed under the
provision of Order IX Rule 9 of CPC had been legally misconstrued and the execution petition should not have been entertained under wrong provision of law. Moreover, the conduct of the petitioner was considered and unworthy by the Court of learned District Judge. However, the inordinate delay in filing the restoration application and also the prior conduct of the respondent decree holder failing to pursue the execution case had not been substantiated with sufficient reasons as to what prevented the respondent decree holder to proceed with the hearing of the other execution No. 02 of 2008 at the first instance and thereafter the prolong period of delay subsequent to the restoration application being filed after the Misc. Judicial case No. MJ 01 of 2017 had been dismissed.
15.
Learned District Judge without according sufficient reasons for considering the period of delay condoned the same disregarding the application for restoration to have been filed under wrong provision of law under Order IX Rule 9 of Code of Civil Procedure.
16.
Moreover, the pendency of a proceeding filed under Section 34 and 37 of the Arbitration and Conciliation Act was out of context to be mentioned in deciding the restoration application as aforesaid.
17.
The decree holder/ respondent Corporation had been negligent in its act to proceed with the execution case and the
same should not have been entertained by the Trial Court to the prejudice of the petitioner since the other execution case No. 02 of 2008 had been dismissed for default on the part of the decree holder / respondent.
Order IX Rule 9 of the Code of Civil Procedure provides that - "Decree against plaintiff by default bars fresh suit.- (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party." Order XXI Rule 106 of Code of Civil Procedure provides that - "Setting aside orders passed ex parte, etc.-
(1) The applicant, against whom an order is made under sub-rule (2) rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance whom the application was called on for hearing, the Court shall set aside the order or such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.
(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.
(3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order". 18.
It is observed by the Hon'ble Supreme Court of India in Civil Appeal No. 10521 of 2013 that - "7. According to us, the application was wrongly filed under Order 1 Rule 10 CPC and it should have been filed Order XXII Rule 10 CPC which reads thus:
ORDER XXII DEATH, MARRIAGE AND INSOLVENCY OF PARTIES Xxx xxx xxx
10. Procedure in case of assignment before final order in suit:-
(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)".
8. It is well settled law that mere non-mentioning of an incorrect provision is not fatal to the application if the power to pass such an order is available with the court."
19.
If any application has been filed with substance it does not get dismissed if the same has been filed mentioning the wrong provision of law. Minor procedural errors or misquoting a statute should not prevent the Court to ensure substantive justice.
20.
The primary issue is to deal with the applications that claims to be decided on merit if at all it exists, rather than magnifying a different or correct section since the application had cited a wrong section.
21.
If the application itself postulated justifiable cause rendering the same to be considered by the Court in order to decide the right of the parties and / or the sustainability of the claim or the rights of the parties the Court can exercise its inherent jurisdiction to decide the issue in question disregarding the misquoting of provision of law under which the application had been filed.
22.
In the instant case the award was passed in 2007 and the execution case was filed in the year 2008. The decree holder had been devastatingly negligent to exercise its right.
23.
The learned Advocate representing the respondent/ decree holder submitted the lack of knowledge on the part of the decree holder in pursuing the execution case being entirely dependant on the learned Advocate representing the same. 24.
The fault on the part of the learned Advocate representing decree holder / respondent should not deprive the respondent decree holder to avail the benefits of the award. 25.
The respondent / decree holder in the instant case is a contractor and not a layman or naive being unaware of the consequences of being negligent in proceeding with the execution case filed by the same against the claim awarded in his favour. The conduct on the part of the petitioner /judgment debtor to have procastinated the proceeding could have been for a reason to evade the liabilities.
26.
The instant case is exemplary of the fact that the respondent / decree holder was not interested or concerned to receive the award claimed through the process of arbitration. Mere pendency of an application under Section 34/36 of the Arbitration Act without a decision by the Court of competent jurisdiction could not have in any manner beyond fathomable reason precluded the respondent / decree holder from enuring the benefit of claims awarded in its favour from the execution case. The indolence of the part of the respondent / decree holder cannot be acceptable.
27.
It is even unacceptable as to why the Trial Court has granted several adjournments contrary to the provisions of granting of adjournment under Order 17 of the Code of Civil Procedure which states as follows:- "1.Court may grant time and adjourn hearing-
(1) The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing.
Provided that no such adjournment shall be granted more than three times to a party during hearing of the suits." 28.
The Executing Court should not have granted adjournments merely as a matter of right beyond the statutory mandate.
29.
In SLP (Civil) No.25511 of 2024 dated March 17, 2025, M/S Uttam Rice Mill Dhantari Vs. M/S Ashok Construction Company the Hon'ble Supreme Court observed as follows: - "7. The Executing Court, vide its order dated 04.10.2019, rejected the application preferred by the respondent on the sole ground that the application was not presented within the stipulated period of 30 days as mandated under Order XXI Rule 106(3) of the CPC.
8. Aggrieved by the aforesaid dismissal, the respondent preferred the Miscellaneous Appeal No. 93 of 2019 before the High Court under Order XLIII Rule 1(ja) of the CPC challenging the order dated 04.10.2019.
9. The High Court, vide the impugned order, held that in the facts of the case, there was no question of invoking the power under Order XXI Rule 105 and 106 of the CPC by the Executing Court since the execution proceeding was dismissed in default and for non payment of process fee for not furnishing the details for attachment of immovable property and, such proceeding cannot be restored by filing an application under Order XXI Rule106 of the CPC as provision in Section 151 CPC is the only provision to consider such prayer. Therefore, it was held that the Executing Court committed illegality in applying Rule 106 of Order XXI of the CPC and not restoring the execution proceedings pending before it. As such, the orders dated 19.04.2018 and 04.10.2019 passed by the Executing Court were set aside and the High Court allowed the appeal preferred by the respondent.
10. Aggrieved by the impugned order, the appellant judgment debtor is before us.
11. We have heard the learned counsel for the parties and perused the material on record.
12. While pursuing the record of proceedings before the Executing Court, what has heavily weighed with this Court is the conduct of the respondent before the Executing Court. A bare perusal of the orders passed by the Executing Court from 30.01.2013 to 22.04.2018 would ex-facie show that the respondent herein was granted more than 5 years to
comply with the repeated directions of the Executing Court to remedy the defects including payment of process fee and furnishing a list of movable properties. It is astonishing to notice that in each of these orders, a period of three days was granted to the respondent to comply with the said directions but the respondent, being the decree -holder and applicant before the Executing Court, remained consistently and blissfully absent. Such a conduct of the part of the respondent led to the matter being adjourned for more than five years before the Executing Court finally dismissed it strictly in terms of the mandate of Order XXI Rule 17(IA) of the CPC.
13. The respondents submission in this regard before the High Court was well as before us is that Order XXI Rule17(IA) of the CPC had no application in the facts and circumstances of the case as the application has not been rejected on account of not remedying the defect, but was rather dismissed for non prosecution, which does not warrant application of the said provision. We fail to understand how such a contention would come to the aid of the respondents given their conduct throughout before the Executing Court for almost five years.
14. Furthermore, even after such an order of dismissal was passed by the Executing Court, the respondent took another year to prefer an application seeking restoration of the execution proceedings. It is blatantly apparent that the
respondent's conduct in initiating execution proceedings a decade after the money decree was passed and then remaining absent before the Executing Court for a period of five years, and yet taking another year in filing a restoration application post the dismissal of execution application reeks of nothing but non diligent conduct throughout.
15. Even if it were assumed that the facts of the case did not demand application of Rule17(IA) of Order XXI of the CPC by the Executing Court while dismissing the execution application, the mere conduct of the decree -holder, which had been laden with lethargy and passivity throughout makes it unjustifiable to grant, any relief to the respondent.
16. The respondent had allowed his cause to suffer for the reason of his own negligence and lackadaisical approach. The above action, or rather inaction, on the part of the respondent is not condonable by this Court and, therefore, the respondent is not entitled to any equitable relief.
17. A litigant who is not vigilant and prompt towards his cause must not be allowed to claim equity before a Court of law. Accordingly, the appeal is allowed and the impugned order of the High Court is set aside. As such, the orders dated 19.04.2018 and 04.10.2019 passed by the Executing Court in Execution Application No. 16-B/2002 dismissing the execution proceedings initiated by the respondent and
dismissing the restoration application respectively are restored."
30. In view of the act of negligence protracting the process of execution despite opportunities granted in favour of the respondent / decree holder, the same being entitled to the award declared in its favour in the year 2007 dragged the execution proceedings after filing the same resulting in inordinate delay cannot claim any advantage for such deliberate lapse on its part.
31. Considering the facts and circumstances of the instant case along with the decision cited above, the order dated 12.08.2024 passed by the learned District Judge, A&N Islands in M.J No. 01 of 2017 arising out of other execution No. 02 of 2008 is hereby set aside.
32. The order dated 27.09.2016 of dismissal of the other execution No.02 of 2008 passed by the learned District Judge, A&N Islands is upheld.
33. CO No. 38 of 2025 is accordingly disposed of.
34. However, there shall be no order as to costs. 35.
Urgent Xerox certified copy this judgment be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities.
(Ananya Bandyopadhyay, J.)