Remand the case for fresh disposal = In our opinion, the need to remand the case to the High Court has occasioned because the impugned judgment was passed by the High Court without hearing the appellant herein (who was respondent No.1 in the appeal before the High Court). Indeed, this fact was not disputed.

1
 NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NOS. 2265-2266 OF 2018
[Arising out of SLP (C) Nos.27440-27441 of 2017]
Mohd. Anwar .. Appellant
Versus
The Oriental Insurance Company
Ltd. & Anr. .. Respondents
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) These appeals arise from the final judgment and
order dated 22.08.2017 passed by the High Court of
Delhi at New Delhi in FAO No.424 of 2016 whereby
the Single Judge of the High Court allowed the
2
appeal filed by respondent No.1 herein and set aside
the order dated 06.05.2016 passed by the Employees’
Compensation Commissioner, Delhi by which the
Commissioner partly allowed the claim petition filed
by the appellant herein. By order dated 11.09.2017,
the High Court also dismissed the application
bearing C.M. No.32982 of 2017 in FAO 424/2016
filed by the appellant herein for setting aside the
judgment dated 22.08.2017.
3) These appeals involve a short point. Few facts
need mention infra to appreciate the point. Facts are
taken from the list of dates and SLP.
4) The appellant herein is the claimant. He was
under the employment of respondent No.2 [M/s
Swati (sic. Swasti) Structure & Concretes], a
company, on the post of Driver. He used to drive
TATA Tipper vehicle bearing No.UK 08V 4577.
3
5) On 08.03.2013, the appellant (claimant), while
on duty, met with an accident and sustained injuries
on his body. The aforesaid accident occurred during
the course of his employment and it also arose out of
employment. The case of the appellant is that the
risks and rights of the parties were covered by the
Insurance Policy and hence on that basis, the
appellant filed a claim petition under the Employees
Compensation Act, 1923 before the Employees
Compensation Commissioner at Delhi seeking
compensation from his employer (respondent No.2)
and Insurer (respondent No.1) for the injuries
sustained by him in the accident.
6) The claim petition was contested by respondent
No.2 (employer) and the Insurance Company
(respondent No.1 herein) on various grounds on facts
and the law. One of the objections raised by
4
respondent No.1 was in relation to the territorial
jurisdiction of the Court in filing the claim petition by
the claimant.
7) By order dated 06.05.2016 (Annexure-P-7), the
claim petition was allowed in part by the
Commissioner against both the respondents herein
and accordingly an award was passed against both
the respondents for a total sum of Rs.8,70,576/- by
way of compensation for the injuries sustained by the
appellant (claimant).
8) Felt aggrieved by order dated 06.05.2016,
Respondent No.1, the Insurance Company filed
appeal before the High Court. By impugned
judgment, the Single Judge allowed the appeal, set
aside the order of the Commissioner and dismissed
the claim petition on the ground of lack of territorial
jurisdiction. Since the impugned judgment was
5
passed without hearing the appellant
herein(respondent No.1 before the High Court), he
filed an application for setting aside the impugned
judgment. By order dated 11.09.2017, the High
Court dismissed the application. Aggrieved by the
judgment/order dated 22.08.2017 and 11.09.2017,
the appellant (claimant) felt aggrieved and filed these
appeals by way of special leave in this Court.
9) Therefore, the short question, which arises for
consideration in this appeal, is whether any case was
made out by the Insurance Company before the High
Court.
10) Heard Mr. R.K. Nain, learned counsel for the
appellant and Mr. K.K. Bhat, learned counsel for
respondent No.1.
11) Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
6
inclined to allow the appeals filed by the claimant
and while setting aside of the impugned judgment
remand the case to the High Court for deciding the
appeal filed by the Insurance company afresh in
accordance with law.
12) In our opinion, the need to remand the case to
the High Court has occasioned because the
impugned judgment was passed by the High Court
without hearing the appellant herein (who was
respondent No.1 in the appeal before the High Court).
Indeed, this fact was not disputed.
13) It is true that the High Court was constrained to
make strong observations against the appellant
(claimant) on the manner in which he prosecuted his
stand in the appeal before the High Court, yet having
regard to the totality of the facts and circumstances
arising in the case including the nature of the claim,
7
the several issues involved therein and the grounds
raised by the Insurance Company in their appeal
leveling serious allegations against the appellant
(claimant) and few others which also found
acceptance to the High Court, we are of the
considered opinion that an opportunity of hearing, in
the interest of justice, needs to be given to the
appellant before the High Court to contest the appeal
filed by the Insurance Company.
14) In view of the foregoing discussion, the appeals
succeed and are accordingly allowed. Impugned
judgment is set aside and the case is remanded to
the High Court for deciding the appeal filed by the
Insurance Company afresh in accordance with law
uninfluenced by any of the observations made by us
because having formed an opinion to remand the
case to the High Court on the ground mentioned
8
above, we did not apply our mind to the merits of the
controversy.
15) Parties to appear before the High Court on
12.03.2018 to enable it to decide the appeal
expeditiously.
………………………………..J
(R.K. AGRAWAL)
 ..………………………………J.
 (ABHAY MANOHAR SAPRE)
New Delhi,
February 19, 2018 

sec.138 NI Act - cheque bounce case - waiver of the sentence relating to imprisonment = two courts confirmed the conviction order of the trial court = the appellant has already deposited the compensation amount of Rs.2,45,000/­ (Rupees two lac forty five thousand). - petitioner to deposit a further sum of Rs.1,00,000/­ (Rupees one lac only) before the trial Court. After the deposit is made, the trial Court shall issue notice to the complainant for withdrawal of the amount. - the order of sentence passed by the Judicial First Class Magistrate­II, Ottappalam, dated 30th March, 2010, stands modified to the extent that the appellant shall pay an additional compensation amount of Rs.1,00,000/­ (Rupees One Lac only) to respondent No.2 ­ original complainant (which is already deposited before the Trial Court), in lieu of simple imprisonment for three months’ period. Ordered accordingly.

1
NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 271 OF  2018
(Arising out of SLP(Crl.) No.57 of 2013)
P. RAMADAS …..APPELLANT(S)
:Versus:
STATE OF KERALA AND ANOTHER …..RESPONDENT(S)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal, by special leave, arises from order dated 10th
February,   2012   passed   by   the   High   Court   of   Kerala   at
Ernakulam in Criminal Revision Petition No.3075/2011.
2. The appellant was convicted by the Judicial First Class
Magistrate­II,   Ottappalam,   for   offence   punishable   under
Section 138 of the Negotiable Instruments Act, 1881 and was
sentenced to undergo simple imprisonment for 3 months and
to pay a compensation of Rs.2,45,000/­ to the complainant
2
under Section 357(3) of the Code of Criminal Procedure, 1973,
vide his order dated 30th  March, 2010 passed in Summary
Trial No.69/2008. In default of payment of compensation, the
appellant   was   directed   to   undergo   further   simple
imprisonment of 15 days.
3. Assailing   the   judgment   of   conviction   and   order   of
sentence   passed   by   the   Judicial   First   Class   Magistrate­II,
Ottappalam, the appellant filed an appeal before the Court of
Additional Sessions Judge, Palakkad Division at Ottapalam,
which   came   to   be   dismissed   on   5th  August,   2011.   Feeling
aggrieved, the appellant approached the High Court of Kerala
at   Ernakulam   by   way   of   criminal   revision   petition,   being
Criminal   Revision   Petition   No.3075/2011.   The   High   Court
confirmed the order of conviction and sentence passed by the
Trial Court and as confirmed by the lower Appellate Court
whilst   dismissing   the   criminal   revision   petition   on   10th
February, 2012. Aggrieved by the said order passed by the
High Court, the appellant has approached this Court by way of
special leave petition.
3
4. This Court issued notice to the respondents. Respondent
No.1 is represented by Advocate Mr. G. Prakash, (AOR). No
appearance has been entered on behalf of respondent No.2
(complainant). When the matter was taken up for hearing on
15th January, 2018, the Court was informed that the appellant
has   already   deposited   the   compensation   amount   of
Rs.2,45,000/­ (Rupees two lac forty five thousand).  However,
considering the submissions made on behalf of the appellant,
the Court passed the following order:
“Let the matter be listed on 12.2.2018 to enable
the   petitioner   to   deposit   a   further   sum   of
Rs.1,00,000/­   (Rupees   one   lac   only)   before   the
trial   Court.   After   the   deposit   is   made,   the   trial
Court   shall   issue   notice   to   the   complainant   for
withdrawal of the amount.
If the proof of withdrawal is filed before this Court,
this Court may consider for waiver of the sentence
relating to imprisonment.”
5. Hearing   of   the   case   was   accordingly   deferred.   The
appellant   has   now   produced   a   receipt   dated   5th  February,
2018 of having deposited sum of Rs.1 lac (Rupees one lac) in
the Trial Court in terms of our order dated 15th January, 2018.
4
Office   Report   dated   8th  February,   2018   indicates   that
respondent   No.2   has   been   duly   served.   However,   no
appearance has been entered on behalf of respondent No.2 till
date. 
6. After considering the submissions and going through the
record of the case, we are of the opinion that it is not possible
to interfere with the concurrent finding of fact regarding the
finding   of   guilt   recorded   against   the   appellant.   Thus,   no
interference is warranted against the order of conviction. The
only question that must receive our attention is about the
sentence awarded to the appellant.
7. Having regard to the fact that the appellant has already
deposited the compensation amount of Rs.2,45,000/­ and also
deposited further amount of Rs.1,00,000/­ (Rupees one lac) as
directed by this Court on 15th January, 2018, what remains to
be complied with by the appellant in terms of the decision of
the   Trial   Court,   is   to   undergo   simple   imprisonment   of   3
months.
5
8. Considering the fact that the appellant has complied with
the   direction   given   by   this   Court   vide   order   dated   15th
January, 2018 and taking overall view of the matter, we are of
the opinion that interest of justice would be subserved if the
order   regarding   simple   imprisonment   of   three   months   is
modified and in lieu thereof, additional compensation amount
of Rs.1,00,000/­ (Rupees One Lac only), already deposited by
the appellant before the Trial Court, is directed to be made
over to respondent No.2. In other words, respondent No.2 is
free   to   withdraw   the   additional   compensation   amount   of
Rs.1,00,000/­ (Rupees One Lac only) already deposited by the
appellant   before   the   Trial   Court.   This   amount   be   paid   to
respondent No.2 subject to verification of his identity.
9. We   are   conscious   of   the   fact   that   respondent   No.2
(complainant)  has  not  appeared before this  Court, but the
order which we propose to pass is to his advantage and, in all
probability, the same would be acceptable to him.  We make it
clear that if respondent No.2 – original complainant is not
6
satisfied with this order, he will be free to apply for recall of
the same, which request can be considered appropriately. 
10. Accordingly,   we   partly   allow   this   appeal   in   the
aforementioned   terms.   Resultantly,   the   order   of   sentence
passed by the Judicial First Class Magistrate­II, Ottappalam,
dated 30th March, 2010, stands modified to the extent that the
appellant   shall   pay   an   additional  compensation   amount   of
Rs.1,00,000/­ (Rupees One Lac only) to respondent No.2 ­
original complainant (which is already deposited before the
Trial Court), in lieu of simple imprisonment for three months’
period.  Ordered accordingly. 
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
               (A.M. Khanwilkar)
   …………………………..….J.
              (Dr. D.Y. Chandrachud)
New Delhi;
February 19, 2018.

corporate law - arbitration awards - execution - the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings. = the view taken by the Madhya Pradesh High Court and the Himachal Pradesh High Court is held to be not good in law while the views of Delhi High Court, Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab & Haryana High Court and Karnataka High Court reflect the correct legal position, for the reasons we have recorded aforesaid.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.1650 of 2018
SUNDARAM FINANCE LIMITED ….Appellant
versus
ABDUL SAMAD & ANR. ..…Respondents
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. The divergence of legal opinion of different High Courts on the
question as to whether an award under the Arbitration &
Conciliation Act, 1996 (hereinafter referred to as the ‘said Act’)
is required to be first filed in the court having jurisdiction over
the arbitration proceedings for execution and then to obtain
transfer of the decree or whether the award can be straightway
filed and executed in the Court where the assets are located is
required to be settled in the present appeal.
CIVIL APPEAL No.1650 of 2018 Page 1 of 21
REPORTABLE
Facts:
2. The appellant claims that the first respondent approached the
appellant for grant of a loan for purchase of a Tata Lorry-HCV
2005 model, which loan was granted by the appellant on the
terms & conditions specified in the Loan Agreement dated
18.8.2005. Respondent No.2 is stated to have stood guarantee for
the repayment of the loan by executing a separate guarantee letter
of the same date. The loan had to be repaid in installments
commencing 3.9.2005 to 3.1.2009.
3. The appellant alleges that respondent No.1 committed default in
payment from the 20th installment onwards. The repossession,
however, of the vehicle could not take place and in order to
recover the loan, arbitration proceedings were initiated in terms
of the arbitration clause contained in the Loan Agreement. Mr. S.
Santhanakrishnan, Advocate was appointed as the sole arbitrator
on 3.5.2011 and the claim statement was filed before the
arbitrator but the respondents remained unserved. Notice was
served through publication but since none appeared for the
respondents, an ex parte arbitration award was made on
22.10.2011 for a sum of Rs.12.69,420 with interest at 18 per cent
CIVIL APPEAL No.1650 of 2018 Page 2 of 21
per annum from 4.4.2011 till realization and costs.
4. The case of the appellant is that the award being enforceable as a
decree under Section 36 of the said Act, execution proceedings
were filed in the jurisdiction of the courts at Morena, Madhya
Pradesh under Section 47 read with Section 151 and Order 21
Rule 27 of the Code of Civil Procedure, 1908 (hereinafter
referred to as the ‘said Code’). The respondents sought to contest
the proceedings inter alia on the ground that the vehicle against
which the loan was obtained was stolen. It is not necessary to go
into further details of the proceedings but suffice to say that the
trial court vide order dated 20.3.2014 return the execution
application on account of lack of jurisdiction to be presented to
the court of competent jurisdiction. The effect of the judgment
was that the appellant was required to file the execution
proceedings first before the court of competent jurisdiction in
Tamil Nadu, obtain a transfer of the decree and then only could
the proceedings be filed in the trial court at Morena. This view
adopted by the trial court was in turn based on the judgment of
the Madhya Pradesh High Court and the opinion of the Karnataka
High Court while it is pleaded that the view of the Rajasthan
CIVIL APPEAL No.1650 of 2018 Page 3 of 21
High Court and the Delhi High Court were to the contrary. The
petitioner did not approach the High Court against the said order
of the trial court but straightway approached this Court by filing
the Special Leave Petition on the ground that no useful purpose
would be served by approaching the Madhya Pradesh High Court
in light of the view already expressed by that Court in conflict
with the opinions of some other High Courts.
The Conflicting Views:
A. The transfer of decree should first be obtained before filing the
execution petition before the Court where the assets are located:
5. The aforesaid view has been adopted by the Madhya Pradesh and
the Himachal Pradesh High Courts:
i. Computer Sciences Corporation India Pvt. Ltd. v.
Harishchandra Lodwal & Anr.1
– The learned single Judge of the
Madhya Pradesh High Court took recourse to the provisions of
Section 42 of the said Act, dealing with the issue of jurisdiction in
respect of an arbitration agreement read with Section 2(e) of the
said Act which defines the ‘Court’. In the context of Section 36 of
the said Act dealing with the enforcement of an award prescribing
1 AIR 2006 Madhya Pradesh 34
CIVIL APPEAL No.1650 of 2018 Page 4 of 21
that “the award shall be enforced under the Code of Civil
Procedure, 1908 (5 of 1908) in the same manner as if it were a
decree of the Court,” it was observed that the same principle would
apply as for enforcing of a decree. Since Section 37 of the Code
defines the Court which passes the decree and Section 39 lays
down the procedure for transfer of decree, it was opined that for
execution of an award a transfer of the decree was mandatory.
ii. Jasvinder Kaur & Anr. v. Tata Motor Finance Limited2
 of the
High Court of Himachal Pradesh, Shimla – the learned single
Judge took note of the fact that the arbitration proceedings were to
be settled in Mumbai in accordance with the said Act and the
award had been made in Mumbai. Thereafter the learned single
Judge copiously extracted from the judgment of this Court in
Swastik Gases Private Limited v. Indian Oil Corporation
Limited3
. The learned Judge then proceeded to, once again,
copiously extract from the then prevailing view of the Karnataka
High Court where a learned single Judge in I.C.D.S. Ltd. v.
Mangala Builders Pvt. Ltd. & Ors.4
 had opined in favour of the
2 CMPMO No.56/2013 decided on 17.9.2013
3 JT 2013 (10) SC 35
4 AIR 2001 Karnataka 364
CIVIL APPEAL No.1650 of 2018 Page 5 of 21
aforesaid view.
B. An award is to be enforced in accordance with the provisions of the
said Code in the same manner as if it were a decree of the Court as per
Section 36 of the said Act does not imply that the award is a decree of a
particular court and it is only a fiction. Thus, the award can be filed for
execution before the court where the assets of the judgment debtor are
located:
i. Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd.5
 (Delhi
High Court) – The learned single Judge of the Delhi High Court
repelled the contention that the jurisdictional Section 42 of the said
Act requiring an application under Section 34 of the said Act to be
filed in that Court would not extend to the execution of a decree.
The execution application was not ‘arbitral proceedings’. Section
38 of the said Code applies to a decree passed by the Court
prescribing that the decree may be executed by the Court which
passed it, or by the Court to which it was sent for execution. In
case of an award no court passes the decree.
The learned single Judge went into the discussion of the
effect of the provisions of Section 635(4) of the Companies Act,
5 2009 159 DLT 579
CIVIL APPEAL No.1650 of 2018 Page 6 of 21
1956 providing for the order of the Company Law Board to be
enforced by the Court in certain circumstances to draw an analogy
therefrom.
ii. Maharashtra Apex Corporation Limited v. V. Balaji G. & Anr.6
(Kerala High Court) – The learned single Judge expressed the view
that the Court cannot insist for a decree to receive an execution
application on its file and, thus, there was no question of transfer of
a decree. The execution court was to accept the execution petition
with a certified copy of the award wherever it was filed.
iii. Kotak Mahindra Bank Ltd. v. Sivakama Sundari & Ors.7
(Madras High Court) – Section 39 of the Code enables the Court
which passed the decree to transfer it to any subordinate court even
of its own motion without application by the decree holder. The
learned single Judge of the Madras High Court examined the
provisions of the said Act and the said Code and in the process, a
reference was made to Section 41 of the said Code imposing an
obligation upon the executing court to inform the court which
passed the decree about the completion of execution or about the
6 2011 (4) KLJ 408
7 (2011) 4 LW 745
CIVIL APPEAL No.1650 of 2018 Page 7 of 21
failure to execute the decree along with attending circumstances.
A passing reference was made to Section 46 of the said Act which
speaks of precepts. In a nutshell the conclusion made was that
every decree of a civil court was liable to be executed primarily by
the court which passed the decree. On the other hand, in case of an
award, the same is liable to be enforced under Section 36 of the
said Act in the same manner as if it were a decree of the court and
thus the award passed is equated to a decree of the court, only for
purposes of execution. The execution of the award does not
require a seal of approval by the civil court as distinct from the
provisions under the Arbitration Act, 1940. The award cannot be
executed through the arbitral tribunal which passed the award and,
thus, there is no situation envisaged for the arbitral tribunal which
passed the decree (or award) to transfer the decree to any other
court for its execution. There was also no provision either in the
Code or anywhere else to treat a court within whose jurisdiction
the arbitral proceedings took place as the court which passed the
decree.
It was, thus, opined that:
“19. While the award passed by an arbitral tribunal is deemed to be
a decree of a civil court under section 36 of the 1996 Act, there is
CIVIL APPEAL No.1650 of 2018 Page 8 of 21
no deeming fiction anywhere to hold that the court within whose
jurisdiction the arbitral award was passed, should be taken to be
the court which passed the decree. Therefore, the whole procedure
of filing an execution petition before the court within whose
jurisdiction the arbitral award was passed, as though it is the court
which passed the decree, is pathetically misconceived.”
xxxx xxxx xxxx xxxx xxxx
“21. Therefore, it is clear that no Court to which an application for
execution of an award is presented, can insist on the filing of the
execution petition first before some other Court and to have it
transmitted to it later. It appears that the High Court of Bombay has
also adopted the same view, though not by a very elaborate order.”
In another perspective it was observed that in view of Section 21 of
the said Act parties could determine the place of arbitration and
thus, the Act transcends all territorial barriers.
iv. Kotak Mahindra Bank Ltd. v. Ram Sharan Gurjar & Anr.8
(Rajasthan High Court) – The learned single Judge of the
Rajasthan High Court agreed with the view adopted by the Delhi
High Court.
v. GE Money Financial Services Ltd. v. Mohd. Azaz & Anr.9
(Allahabad High Court, Lucknow Bench) – The learned single
Judge observed that the arbitrator cannot be treated as a court
although the award made by him will be executed as a decree.
8 (2012) 1 RLW 960
9 2013 SCC OnLine All 13365 = (2013) 100 ALR 766
CIVIL APPEAL No.1650 of 2018 Page 9 of 21
Thus, Sections, 38 & 39 of the said Code would have no
application and the award can, thus, be filed for execution as a
decree of civil court wherever the judgment debtor resides or
carries on business or has properties within the jurisdiction of the
said court.
vi. Indusind Bank Ltd. v. Bhullar Transport Company10(Punjab &
Haryana High Court) – The view of the Delhi High Court referred
to aforesaid was adopted.
vii. Sri Chandrashekhar v. Tata Motor finance Ltd. & Ors.11
(Karnataka High Court) – The learned single Judge of the
Karnataka High Court opined that the question of filing an
execution petition before the court which passed the decree and
then seeking a transfer of the decree to the court where the assets
are located would not arise, as an award is not a decree passed by
the court.
Our View:
6. In order to appreciate the controversy, we would first like to deal
with the provisions of the said Code and the said Act.
10 MANU/PH/2896/2012
11 (2015) 1 AIR Kant R 261
CIVIL APPEAL No.1650 of 2018 Page 10 of 21
7. Part II of the said Code deals with execution proceedings.
Section 37 of the said Code defines the ‘Court’, which passed the
decree. Section 38 of the said Code provides as to by which
court the decree would be executed and reads as under:
“38. Court by which decree may be executed. – Adecree may be
executed either by the Court which passed it, or by the Court to
which it is sent for execution.”
8. Section 39 of the said Code provides for transfer of decree and
reads as under:
“39. Transfer of decree. – (1)The Court which passed a decree
may, on the application of the decree-holder, send it for execution
to another Court [of competent jurisdiction],-
(a) if the person against whom the decree is passed actually and
voluntarily resides or carries on business, or personally works for
gain, within the local limits of the jurisdiction of such other Court,
or
(b) if such person has no property within the local limits of the
jurisdiction of the Court which passed the decree sufficient to
satisfy such decree and has property within the local limits of the
jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable property
situate outside the local limits of the jurisdiction of the Court
which passed it, or
(d) if the Court which passed the decree considers for any other
reason, which it shall record in writing, that the decree should be
executed by such other Court.
(2) The Court which passed the decree may of its own motion send
it for execution to any subordinate Court of competent jurisdiction.
CIVIL APPEAL No.1650 of 2018 Page 11 of 21
[(3) For the purposes of this section, a Court shall be deemed to be
a Court of competent jurisdiction if, at the time of making the
application for the transfer of decree to it, such Court would have
jurisdiction to try the suit in which such decree was passed.]
[(4) Nothing in this section shall be deemed to authorise the Court
which passed a decree to execute such decree against any person or
property outside the local limits of its jurisdiction.]”
9. One of the relevant provisions, the effect of which has not been
really discussed in any of the judgments referred to aforesaid is
Section 46 of the said Code which defines Precepts as under:
“46. Precepts. – (1)Upon the application of the decree-holder the
Court which passed the decree may, whenever it thinks fit, issue a
precept to any other Court which would be competent to execute
such decree to attach any property belonging to the
judgment-debtor and specified in the precept.
(2) The Court to which a precept is sent shall proceed to attach the
property in the manner prescribed in regard to the attachment of
property in execution of a decree:
Provided that no attachment under a precept shall continue for
more than two months unless the period of attachment is extended
by an order of the Court which passed the decree or unless before
the determination of such attachment the decree has been
transferred to the Court by which the attachment has been made
and the decree-holder has applied for an order for the sale of such
property. Questions to be determined by Court executing decree”
10.The relevance of the aforesaid provision is that the application of
the decree holder is made to the Court which passed the decree,
which issues the precepts to any other Court competent to
CIVIL APPEAL No.1650 of 2018 Page 12 of 21
execute the said decree. As noticed, the expression “the Court
which passed the decree” is as per Section 37 of the said Code.
We may note at this stage itself that in the case of an award there
is no decree passed but the award itself is executed as a decree by
fiction. The provisions of the said Act traverse a different path
from the Arbitration Act, 1940, which required an award made to
be filed in Court and a decree to be passed thereon whereupon it
would be executable.
11. Now turning to the provisions of Order XXI of the said Code,
which deals with execution of decrees and orders. In case a
Court desires that its own decree is to be executed by another
court, the manner for doing so is provided by Rule 6, which reads
as under:
“Order XXI – Execution of Decrees and Orders
xxxx xxxx xxxx xxxx xxxx
6. Procedure where court desires that its own decree shall be
executed by another court.- The court sending a decree for
execution shall send—
(a) a copy of the decree;
(b) a certificate setting forth that satisfaction of the decree has not
been obtained by execution within the jurisdiction of the court by
which it was passed, or, where the decree has been executed in
part, the extent to which satisfaction has been obtained and what
part of the decree remains unsatisfied; and
CIVIL APPEAL No.1650 of 2018 Page 13 of 21
(c) a copy of any order for the execution of the decree, or, if no
such order has been made, a certificate to that effect.”
12.The manner of presentation of an application is contained in Rule
11(2) of Order XXI, which reads as under:
“Order XXI – Execution of Decrees and Orders
xxxx xxxx xxxx xxxx xxxx
11 (2) Written application—Save as otherwise provided by
sub-rule (1), every application for the execution of a decree shall
be in writing, signed and verified by the applicant or by some other
person proved to the satisfaction of the court to be acquainted with
the facts of the case, and shall contain in a tabular form the
following particulars, namely:—
(a) the number of the suit;
(b) the names of the parties;
(c) the date of the decree;
(d) whether any appeal has been preferred from the decree;
(e) whether any, and (if any) what, payment or other adjustment of
the matter in controversy has been made between the parties
subsequently to the decree;
(f) whether any, and (if any) what, previous applications have been
made for the execution of the decree, the dates of such applications
and their results;
(g) the amount with interest (if any) due upon the decree, or other
relief granted thereby, together with particulars of any cross decree,
whether passed before or after the date of the decree sought to be
executed;
(h) the amount of the costs (if any) awarded;
CIVIL APPEAL No.1650 of 2018 Page 14 of 21
(i) the name of the person against whom execution of the decree is
sought; and the mode in which the assistance of the court is
required, whether—
(i) by the delivery of any property specifically decreed;
(ii) by the attachment, or by the attachment and sale, or by the sale
without attachment, of any property;
(iii) by the arrest and detention in prison of any person;
(iv) by the appointment of a receiver;
(v) otherwise, as the nature of the relief granted may require.”
13.A perusal of the aforesaid shows that what is sought to be
disclosed is that the details like the number of suits, appeal
against the decree, etc. find a place, which really does not have a
relevance to the fiction of an award to be treated as a decree of
the Court for purposes of execution.
14.We would now like to refer to the provisions of the said Act,
more specifically Section 36(1), which deals with the
enforcement of the award:
“36. Enforcement. – (1) Where the time for making an application
to set aside the arbitral award under section 34 has expired, then,
subject to the provisions of sub-section (2), such award shall be
enforced in accordance with the provisions of the Code of Civil
Procedure, 1908 (5 to 1908), in the same manner as if it were a
decree of the court.”
CIVIL APPEAL No.1650 of 2018 Page 15 of 21
15.The aforesaid provision would show that an award is to be
enforced in accordance with the provisions of the said code in the
same manner as if it were a decree. It is, thus, the enforcement
mechanism, which is akin to the enforcement of a decree but the
award itself is not a decree of the civil court as no decree
whatsoever is passed by the civil court. It is the arbitral tribunal,
which renders an award and the tribunal does not have the power
of execution of a decree. For the purposes of execution of a
decree the award is to be enforced in the same manner as if it was
a decree under the said Code.
16.Section 2(e) of the said Act defines ‘Court’ as under:
“2. Definitions. ………
xxxx xxxx xxxx xxxx xxxx
[(e) “Court” means –
(i) in the case of an arbitration other than international
commercial arbitration, the principal Civil Court of original
jurisdiction in a district, and includes the High Court in exercise
of its ordinary original civil jurisdiction, having jurisdiction to
decide the questions forming the subject-matter of the arbitration
if the same had been the subject-matter of a suit, but does not
include any Civil Court of a grade inferior to such principal Civil
Court, or any Court of Small Causes;
(ii) in the case of international commercial arbitration, the High
CIVIL APPEAL No.1650 of 2018 Page 16 of 21
Court in exercise of its ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming the subject-matter of
a suit, and in other cases, a High Court having jurisdiction to hear
appeals from decrees of courts subordinate to that High Court;]”
17.The line of reasoning supporting the award to be filed in a
so-called court of competent jurisdiction and then to obtain a
transfer of the decree is primarily based on the jurisdiction clause
found in Section 42, which reads as under:
“42. Jurisdiction. – Notwithstanding anything contained
elsewhere in this Part or in any other law for the time being in
force, where with respect to an arbitration agreement any
application under this Part has been made in a Court, that Court
alone shall have jurisdiction over the arbitral proceedings and all
subsequent applications arising out of that agreement and the
arbitral proceedings shall be made in that Court and in no other
Court.”
18.The aforesaid provision, however, applies with respect to an
application being filed in Court under Part I. The jurisdiction is
over the arbitral proceedings. The subsequent application arising
from that agreement and the arbitral proceedings are to be made
in that court alone. However, what has been lost sight of is
Section 32 of the said Act, which reads as under:
“32. Termination of proceedings.—
(1) The arbitral proceedings shall be terminated by the final arbitral
award or by an order of the arbitral tribunal under sub-section (2).
(2) The arbitral tribunal shall issue an order for the termination of
CIVIL APPEAL No.1650 of 2018 Page 17 of 21
the arbitral proceedings where—
(a) the claimant withdraws his claim, unless the respondent objects
to the order and the arbitral tribunal recognises a legitimate interest
on his part in obtaining a final settlement of the dispute,
(b) the parties agree on the termination of the proceedings, or
(c) the arbitral tribunal finds that the continuation of the
proceedings has for any other reason become unnecessary or
impossible.
(3) Subject to section 33 and sub-section (4) of section 34, the
mandate of the arbitral tribunal shall terminate with the termination
of the arbitral proceedings.”
19.The aforesaid provision provides for arbitral proceedings to be
terminated by the final arbitral award. Thus, when an award is
already made, of which execution is sought, the arbitral
proceedings already stand terminated on the making of the final
award. Thus, it is not appreciated how Section 42 of the said Act,
which deals with the jurisdiction issue in respect of arbitral
proceedings, would have any relevance. It does appear that the
provisions of the said Code and the said Act have been mixed up.
20.It is in the aforesaid context that the view adopted by the Delhi
High Court in Daelim Industrial Co. Ltd. v. Numaligarh
Refinery Ltd.12 records that Section 42 of the Act would not
12 supra
CIVIL APPEAL No.1650 of 2018 Page 18 of 21
apply to an execution application, which is not an arbitral
proceeding and that Section 38 of the Code would apply to a
decree passed by the Court, while in the case of an award no
court has passed the decree.
21.The Madras High Court in Kotak Mahindra Bank Ltd. v.
Sivakama Sundari & Ors.13referred to Section 46 of the said
Code, which spoke of precepts but stopped at that. In the context
of the Code, thus, the view adopted is that the decree of a civil
court is liable to be executed primarily by the Court, which
passes the decree where an execution application has to be filed
at the first instance. An award under Section 36 of the said Act,
is equated to a decree of the Court for the purposes of execution
and only for that purpose. Thus, it was rightly observed that
while an award passed by the arbitral tribunal is deemed to be a
decree under Section 36 of the said Act, there was no deeming
fiction anywhere to hold that the Court within whose jurisdiction
the arbitral award was passed should be taken to be the Court,
which passed the decree. The said Act actually transcends all
territorial barriers.
Conclusion:
13 supra
CIVIL APPEAL No.1650 of 2018 Page 19 of 21
22.We are, thus, unhesitatingly of the view that the enforcement of
an award through its execution can be filed anywhere in the
country where such decree can be executed and there is no
requirement for obtaining a transfer of the decree from the Court,
which would have jurisdiction over the arbitral proceedings.
23.The effect of the aforesaid is that the view taken by the Madhya
Pradesh High Court and the Himachal Pradesh High Court is held
to be not good in law while the views of Delhi High Court,
Kerala High Court, Madras High Court, Rajasthan High Court,
Allahabad High Court, Punjab & Haryana High Court and
Karnataka High Court reflect the correct legal position, for the
reasons we have recorded aforesaid.
24.The appeal is accordingly allowed and the impugned order dated
20.3.2014 is set aside restoring the execution application filed by
the appellant before the Morena courts. The parties are left to
bear their own costs.
..….….…………………….J.
 (J. Chelameswar)
 ...……………………………J.
CIVIL APPEAL No.1650 of 2018 Page 20 of 21
 (Sanjay Kishan Kaul)
New Delhi.
February 15, 2018.
CIVIL APPEAL No.1650 of 2018 Page 21 of 21

suit for specific performance - “Ease of business” and “enforcement of contract” are the two new buzzwords and rightly so - The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. - the plaintiff is required to prove that from the date of execution of the agreement of sale till the date of the decree, he was always ready and willing to perform his part of the contract. = As far as his capacity to arrange for funds is concerned, it has come on record that Rakesh Kumar did take a loan from his cousin but that was only for his business and not for paying the balance consideration for the land in dispute. There is nothing on record to indicate that Rakesh Kumar could have not only repaid the loan taken from his cousin, but additionally, could have arranged sufficient funds to pay the balance consideration. It is very doubtful, and it is easy and reasonable to infer this, that Rakesh Kumar was incapable of meeting both liabilities.- On the facts placed before us, we are satisfied that the Trial Judge was right in coming to the conclusion that Rakesh Kumar was not in a position to pay the balance consideration to Kalawati and the other vendors, and by necessary implication, it must be held that he was neither ready nor willing to perform his part of the agreement. - We have gone through the agreement to sell dated 29th May, 1986 and the relevant clause of the contract is remarkably vague and reads as follows: “That the vendors will obtain the no objection certificate from the authorities concerned and will inform the vendee by registered post after getting the income tax clearance certificate.” - is not valid one - the High Court was in error in setting aside the judgment and decree of the Trial Judge. Accordingly, the appeal is allowed and the judgment and decree passed by the High Court is set aside. No costs.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2244 OF 2018
(Arising out of Special Leave Petition (C) No.28275 of 2014)
Kalawati (D) Through LRs. & Ors. ...Appellants
versus
Rakesh Kumar & Ors. ...Respondents
J U D G M E N T
Madan B. Lokur, J.
1. Leave granted.
2. “Ease of business” and “enforcement of contract” are the two new
buzzwords and rightly so. For ease of doing business insofar as justice
delivery is concerned, it is time to introspect and introduce case
management programmes to streamline the system so that suits and
appeals can be decided more efficiently. The present appeal exemplifies
the need for case management system.
3. The subject matter of the appeal is an agreement to sell dated 29th
May, 1986. A suit was filed by the plaintiff (Rakesh Kumar) in the Delhi
High Court being Suit No.1193 of 1987 for specific performance of the
C.A No. _________ of 2018 (@ out of SLP (C) No.28275 of 2014) Page 1
agreement to sell. It appears that due to a change in pecuniary
jurisdiction, the suit was transferred to the District Courts and was
re-numbered as Suit No.642 of 2001. A disturbing feature of the appeal is
that even about 31 years later, the parties are not quite sure about the fate
of the agreement to sell entered into in 1986. The period is extremely
long and such a lapse of time for the enforcement (or otherwise) of a
contract is good reason to re-think the procedures.
4. The appellants (Kalawati and others) are aggrieved by the
judgment and decree dated 10th December, 2013 passed by a learned
Single Judge of the Delhi High Court in R.F.A. No.521 of 2004.
5. In the plaint filed by the respondent (Rakesh Kumar), it was
averred that he had entered into an agreement to sell on 29th May, 1986 in
respect of land in Rectangle No.81, Killa Nos.21/1 (1-2), 22/1 (4-5), 19/2
(4-0), 19/1 (0-12), 20/2 (1-2) in all measuring 11 bighas and 1 biswa
situated in Village Mehrauli, Tehsil Mehrauli, New Delhi. A part of the
land was under the absolute ownership/bhumidari of Kalawati while the
rest of the land was in the absolute ownership/bhumidari of defendant
Nos.2 to 4 (Bishan Prakash, Om Prakash and Ved Prakash).
6. As per the agreement to sell, the sale price of the land in dispute
was Rs.1,32,000/- per acre. An amount of Rs.30,000/- was paid by
Rakesh Kumar to the defendants as advance payment and part payment
C.A No. _________ of 2018 (@ out of SLP (C) No.28275 of 2014) Page 2
towards the sale price for which a receipt was given to him.
7. According to Rakesh Kumar, the defendants were obliged to obtain
a certain ‘no objection certificate’ from the appropriate authority for sale
of the disputed land and also permissions and clearances but they failed
to take any interest in this regard. Accordingly, Rakesh Kumar issued a
lawyer’s notice dated 16th May, 1987 to the defendants to carry out their
obligations but they failed to do so.
8. Faced with this situation, Rakesh Kumar filed a suit before the
High Court being Suit No. 1193 of 1987. As mentioned above, the suit
was transferred to the District Courts and renumbered as Suit No.642 of
2001. The prayer in the suit was for specific performance for the
agreement to sell dated 29th May, 1986 and for possession of the land in
dispute. Along with the plaint, an application was filed by Rakesh Kumar
under Order XXXIX of the Code of Civil Procedure for an injunction
against alienation of the land in dispute, in which notice was issued to the
defendants therein. Rakesh Kumar was granted an interim injunction
subject to his depositing the balance sale consideration for restraining the
defendants from alienating the land in dispute. It has come on record that
Rakesh Kumar did not deposit the balance sale consideration.
9. At this stage, it may be mentioned that during the pendency of the
suit, the defendants transferred the land in dispute in 1995 to defendant
C.A No. _________ of 2018 (@ out of SLP (C) No.28275 of 2014) Page 3
Nos.5, 6 and 7 and that is why the purchasers were impleaded as
defendants in the suit.
10. The parties filed their written statements to the plaint and the stand
taken by the defendants was that the sale consideration of Rs.1,32,000/-
per acre was ridiculously low and illusory. Additionally, Rakesh Kumar
himself was not ready and willing to perform his part of agreement and
therefore no relief could be granted to him. It was also averred that
Rakesh Kumar did not have the necessary finances to pay the
consideration amount and so was not prepared to have the sale deed
executed in his favour.
11. On the pleadings before him, the Trial Judge framed several issues
but we are only concerned with the issue whether the plaintiff (Rakesh
Kumar) was at all times ready and willing to perform his part of the
agreement. This issue was answered in the negative by the Trial Judge
and against Rakesh Kumar resulting in the dismissal of the suit. Among
the reasons given by the Trial Judge for coming to the conclusion that
Rakesh Kumar was not ready and willing to execute the contract, at all
times, was that at the time of grant of interim injunction prayed for by
Rakesh Kumar in an application under Order XXXIX of Code of Civil
Procedure while the suit was pending in the High Court, he was required
to deposit the balance consideration as a pre-condition for restraining the
C.A No. _________ of 2018 (@ out of SLP (C) No.28275 of 2014) Page 4
defendants from selling, mortgaging, alienating or otherwise parting with
possession with the land in dispute. The balance sale consideration was
not deposited by Rakesh Kumar and therefore, the interim injunction
prayed for by him was not granted. In the absence of any injunction
against alienating the land in dispute, the defendants transferred it to
defendant Nos.5, 6 and 7 in 1995.
12. The Trial Judge also noted that from his cross-examination it was
evident that Rakesh Kumar did not have the resources and sufficient
money to purchase the disputed land. He was in possession of only one
truck and was earning Rs.10,000/- per month. He was not assessed to
income tax and he filed his income tax return for the first time in 1994.
Earlier in 1988-89, he had opened a bank account but never had a balance
of more than Rs.52,000/- in his bank account. Sometime in July, 2002
Rakesh Kumar took a loan of Rs.3.15 lakhs for the purpose of his
business from his cousin but the loan was not taken for the purpose of
buying the land in dispute. Taking all these factors into consideration, the
Trial Judge held that Rakesh Kumar did not have the means to pay the
balance consideration and was not ready and willing to perform his part
of the contract at all times.
13. Feeling aggrieved, Rakesh Kumar preferred a Regular First Appeal
before the Delhi High Court. The High Court addressed itself only to the
C.A No. _________ of 2018 (@ out of SLP (C) No.28275 of 2014) Page 5
question whether Rakesh Kumar was ready and willing to execute his
part of the agreement to sell, at all times. The High Court took the view
that rather than Rakesh Kumar, it was the defendants who were not
willing to execute the sale deed. The High Court came to this conclusion
on the basis of the requirement in terms of the agreement to sell that the
defendants were obliged to obtain a ‘no objection certificate’ for
executing the sale deed but they had not taken any steps in that regard.
The High Court also relied on the affidavit by way of evidence filed by
Rakesh Kumar about his capacity to pay the balance sale consideration. It
was also noted by the High Court that the lawyer’s notice sent by him on
16th May, 1987 had not been responded to by the defendants. On a
consideration of these factors, it was clear that the defendants were not
interested in executing the sale deed.
14. On the other hand, as far as Rakesh Kumar’s readiness and
willingness to execute the sale deed is concerned, the High Court noted
that in his cross-examination recorded on 4th October, 2002 he explained
that just prior to the date of entering into the agreement to sell, he had
disposed of his house. Thus, he had sufficient funds available for
investing and on this basis, he had agreed to purchase the land in dispute.
15. The High Court noted that even though Rakesh Kumar did not
deposit the balance consideration for the grant of injunction in his favour,
C.A No. _________ of 2018 (@ out of SLP (C) No.28275 of 2014) Page 6
that was of no consequence and could not be held against him. We agree
with the High Court only to this limited extent.
16. Taking all these factors into consideration, the High Court reversed
the view of the Trial Judge and concluded that Rakesh Kumar was
entitled to a decree for specific performance of the agreement to sell
dated 29th May, 1986 and for delivery of vacant, peaceful and physical
possession of the land in dispute.
17. Having heard learned counsel for the parties, we are not in favour
of the view expressed by the High Court but subscribe to the view of the
Trial Judge.
18. The law on the subject of specific performance of contracts is quite
clear and it is not necessary to cite the dozens of judgments delivered by
this Court on the issue. However, it is necessary to refer to two decisions
which are quite apposite to the facts of the case before us.
19. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram
Thapar1
this Court drew a distinction between readiness to perform the
contract and willingness to perform the contract. It was observed that by
readiness it may be meant the capacity of the plaintiff to perform the
contract which would include the financial position to pay the purchase
price. As far as the willingness to perform the contract is concerned, the
1 (1996) 4 SCC 526
C.A No. _________ of 2018 (@ out of SLP (C) No.28275 of 2014) Page 7
conduct of the plaintiff has to be properly scrutinised along with attendant
circumstances. On the facts available, the Court may infer whether or not
the plaintiff was always ready and willing to perform his part of the
contract. It was held in paragraph 2 of the Report:
“There is a distinction between readiness to perform the contract
and willingness to perform the contract. By readiness may be
meant the capacity of the plaintiff to perform the contract which
includes his financial position to pay the purchase price. For
determining his willingness to perform his part of the contract,
the conduct has to be properly scrutinised…... The factum of
readiness and willingness to perform plaintiff's part of the
contract is to be adjudged with reference to the conduct of the
party and the attending circumstances. The court may infer from
the facts and circumstances whether the plaintiff was ready and
was always ready and willing to perform his part of the contract.
The facts of this case would amply demonstrate that the
petitioner/plaintiff was not ready nor had the capacity to perform
his part of the contract as he had no financial capacity to pay the
consideration in cash as contracted and intended to bide for the
time which disentitles him as time is of the essence of the
contract.”
20. In I.S. Sikandar (Dead) by Lrs. v. K. Subramani &Ors.
2
this Court
noted that the plaintiff is required to prove that from the date of execution
of the agreement of sale till the date of the decree, he was always ready
and willing to perform his part of the contract. In this case, looking the
attendant facts and circumstances, the Court upheld the view of the Trial
Judge that the plaintiff had no money to pay the balance sale
consideration and was apparently not capable of making necessary
2 (2013) 15 SCC 27
C.A No. _________ of 2018 (@ out of SLP (C) No.28275 of 2014) Page 8
arrangements for payment of the balance consideration. It was held in
paragraph 45 and paragraph 47 of the Report:
“45.……..Further, the plaintiff is required to prove the fact that
right from the date of execution of the agreement of sale till the
date of passing the decree he must prove that he is ready and has
always been willing to perform his part of the contract as per the
agreement……”
“47. Further, there is nothing on record to show that the plaintiff
could have made arrangement for payment of the balance
consideration amount to them. But, on the other hand the trial
court has recorded the finding of fact to the effect that the
correspondence between the parties and other circumstances
would establish the fact that the plaintiff had no money for
payment of balance sale consideration…….”
21. In so far as the present appeal is concerned, the material on record
clearly indicates that Rakesh Kumar did not have the necessary funds
available with him to pay the balance consideration. His low income and
low bank balance indicated his incapacity to make the balance payment.
As far as his capacity to arrange for funds is concerned, it has come on
record that Rakesh Kumar did take a loan from his cousin but that was
only for his business and not for paying the balance consideration for the
land in dispute. There is nothing on record to indicate that Rakesh Kumar
could have not only repaid the loan taken from his cousin, but
additionally, could have arranged sufficient funds to pay the balance
consideration. It is very doubtful, and it is easy and reasonable to infer
this, that Rakesh Kumar was incapable of meeting both liabilities.
C.A No. _________ of 2018 (@ out of SLP (C) No.28275 of 2014) Page 9
22. On the facts placed before us, we are satisfied that the Trial Judge
was right in coming to the conclusion that Rakesh Kumar was not in a
position to pay the balance consideration to Kalawati and the other
vendors, and by necessary implication, it must be held that he was neither
ready nor willing to perform his part of the agreement.
23. It was submitted that Kalawati and the other vendors did not
perform their part of the agreement despite Rakesh Kumar requesting
them to do so. The contention of Rakesh Kumar was that the vendors
did not obtain a “no objection certificate” from the authorities concerned.
We have gone through the agreement to sell dated 29th May, 1986 and the
relevant clause of the contract is remarkably vague and reads as follows:
“That the vendors will obtain the no objection certificate from the
authorities concerned and will inform the vendee by registered
post after getting the income tax clearance certificate.”
24. There is nothing to indicate the nature of the “no objection
certificate” that the vendors were required to obtain and who were the
authorities from whom the “no objection certificate” was required, nor is
there any indication of the purpose for which the “no objection
certificate” was required. Similarly, there is no indication about the
nature of the income tax clearance certificate required and for what
purpose. This clause appears to have been inserted in the agreement to
sell without any application of mind and it is quite possible, as alleged by
C.A No. _________ of 2018 (@ out of SLP (C) No.28275 of 2014) Page 10
the vendors that the agreement to sell was ante-dated after the
introduction of Section 260-UC in the Income Tax Act, 1961. However,
we need not go into this possibility in view of the vague nature of the
clause.
25. On an overall consideration of the facts and in the circumstances of
the case, in our opinion, the High Court was in error in setting aside the
judgment and decree of the Trial Judge. Accordingly, the appeal is
allowed and the judgment and decree passed by the High Court is set
aside. No costs.
………………………J
(Madan B. Lokur)
New Delhi; ...……………………..J
February 16, 2018 (Deepak Gupta)
C.A No. _________ of 2018 (@ out of SLP (C) No.28275 of 2014) Page 11

It is well settled position of law that if an order adversely affects any party, he has a right to challenge it. The appellant was not a party to the appeal filed by Bansi Ballabh, but by the order passed by the Settlement Officer, Consolidation in the appeal filed by Bansi Ballabh, the appellant was virtually denied access to the road. Therefore, the Deputy Director, Consolidation was justified in entertaining the revision filed by the appellant herein and making re-allotments, as indicated hereinabove. - The respondent, Deoki Devi is directed to remove the entire construction at her own cost and hand over vacant and peaceful possession of the land to the appellant within 30 days from today failing which the appellant can take assistance of the Court to take possession of the land and building in which event, Deoki Devi will not be entitled to the cost of the structure or any other damages.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).394 OF 2009
Mahant Lalita Sharanji ...Appellant(s)
Versus
Deoki Devi & Anr. …Respondent(s)
J U D G M E N T
Deepak Gupta J.
1. The appellant is the Mahant of Shri Mukunddevacharya
Peeth, Topi Kunj, Temple of Thakur Radhemohanji Maharaj at
Vrindavan. The temple was owner of plot bearing No. 212/2
measuring 2.48 acres. The contesting respondent no. 1 Deoki
Devi was owner of land bearing No. 319 measuring 0.44 acres.
One Bansi Ballabh [not a party to these proceedings], was the
owner of Plot No. 215 and Plot No. 216.
2
2. Consolidation proceedings took place and during the course
of these proceedings, the appellant was allotted a portion of Plot
No. 212/2, a portion of Plot No. 215 and a portion of Plot No.
216. A portion of Plot No. 212/2, adjoining the road, was treated
as bachat land for use by the Gaon Sabha. It is pertinent to
mention that one Premwati (not a party to these proceedings),
was also allotted a very small portion of Plot No. 212/2. The land
reserved as bachat land for use by the Gaon Sabha and the land
allotted to Premwati adjoined the Vrindavan Chatikara main
road. Deoki Devi was also allotted a portion of Plot No. 215
measuring 0.18 acres. The appellant did not challenge the
allotment of land to the Gaon Sabha [bachat land] or the
allotment of land to Premwati.
3. Bansi Ballabh, owner of Plot No. 215 and Plot No. 216, filed
an appeal challenging the allotment of 0.18 acres of land in Plot
No. 215 in favour of Deoki Devi. It would be pertinent to mention
that the present appellant was not a party to those proceedings.
The Settlement Officer, Consolidation allowed the appeal filed by
Bansi Ballabh on 27.08.1981. However, the Settlement Officer,
Consolidation did not limit the appeal to the claim against Deoki 
3
Devi only. He ordered amendment of the holding table and now
Deoki Devi, who had been allotted land in Plot No. 215, was
allotted 0.17 acres of land in Plot No. 212/2, adjoining the
Vrindavan Chatikara main road. The holding of the appellant
[though he was not a party to the proceedings] was also changed
and 0.39 acres of land allotted to him in Plot No. 215 and 0.36
acres of land in Plot No. 216, were taken away and he was again
granted 0.66 acres of land in Plot No. 212/2 in addition to what
was already allotted to him. As far as the bachat land was
concerned, that was changed from Plot No. 212/2 to the northeast
corner of Plot No. 216 measuring 0.62 acre. The appellant
claims that he was unaware of this order since he was not a
party to the appeal filed by Bansi Ballabh.
4. The appellant filed a restoration application before the
Settlement Officer, Consolidation and, at the same time, filed a
revision petition before the Deputy Director, Consolidation
against the order dated 27.08.1981. The restoration application
was dismissed by the Settlement Officer, Consolidation mainly on
the ground that since the appellant had not challenged the
reduction of his holding in Plot No. 212/2 in the first round of
4
consolidation proceedings wherein the front portion of his plot
had been reserved as bachat land for use by the Gaon Sabha, he
was not entitled to challenge the same in the second round.
However, the Deputy Director, Consolidation allowed the revision
filed by the appellant on 13.12.1983. Before the Deputy Director,
Consolidation, Bansi Ballabh, Hari Vallabh, Deoki Devi and the
Gaon Sabha were all parties. Premwati was also made a party to
the proceedings subsequently. Notices were sent but the
respondent Deoki Devi and Premwati were proceeded ex parte
and the revision was allowed. By the amended table of holding,
the appellant was allotted Plot No. 212/2, which was his original
holding and both Premwati and Deoki Devi were allotted land in
Plot No. 216.
5. Thereafter, Premwati and Deoki Devi both filed restoration
application before the Deputy Director, Consolidation, who
rejected the same on the ground that both of them had been duly
served. The Deputy Director, Consolidation also noted that Deoki
Devi was not ready to take back her original plot i.e. Plot No. 319
and he upheld the allotment of land to her in Plot No. 216.
Aggrieved, Deoki Devi filed a writ petition in the Allahabad High
5
Court, which was allowed by the impugned judgment mainly on
the ground that since the appellant herein had accepted the
allotment of front portion of Plot No. 212/2 to the Gaon Sabha
and Premwati, he having lost title to the property could not object
to the grant of the same to Deoki Devi especially since he has not
filed an appeal against the original order.
6. We have heard learned counsel for the parties. The main
contention urged on behalf of the appellant is that since the main
portion of Plot No. 212/2 was reserved as bachat land, to be
allotted to the Gaon Sabha, which the appellant could have also
utilised, he had not objected to the same. It is submitted that in
the appeal filed by Bansi Ballabh, the original order of allotment
was virtually set aside and even the lands allotted to the
appellant in Plot No. 215 and Plot No. 216 were taken back from
him and thereafter, the Respondent No. 1, Deoki Devi was
allotted the front portion of Plot No. 212/2 adjoining the road and
this gave the appellant a fresh cause of action. It is also urged
that in the writ petition filed by Deoki Devi she had made an
averment on affidavit that she wants her original holding
[obviously Plot No. 319] provided she is given compensation of
6
Rs.20,000/-. Therefore, the writ court could not have granted
relief to her beyond what she had prayed.
7. On the other hand, learned counsel for Respondent No.1,
Deoki Devi, after referring to Section 9(2) and 11-A of the U.P.
Consolidation of Holdings Act, 1953 (for short ‘the Consolidation
Act’), submits that once the appellant had accepted the original
order, he was no longer the owner of the land and he could not
challenge the subsequent order.
8. Section 9(2) of the Consolidation Act provides that any
person to whom notice has been sent under Section 9(1), has to
file objections before the Assistant Consolidation Officer within a
period of 21 days from the date of receipt of the notice. Section
11-A of the Consolidation Act provides that no question in
respect of claims to land etc. relating to a consolidation area
which might or ought to have been raised under Section 9(2) and
were not raised at that stage, can be permitted to be raised or
heard at subsequent stage of consolidation proceedings. The
purpose of these two provisions is to ensure that when a draft
scheme is prepared or notice of allotment of land is issued, then 
7
if a person has any objection to the same, he must file his
objection at that stage and if he does not file the same, he cannot
be permitted to raise these objections at a later stage. This is a
well settled position of law.
9. Each case has to be decided on its own facts. In the present
case, the appellant had not objected to grant of a very small
portion of land to Premwati and allotment of the front portion of
the land as bachat land to be used by the Gaon Sabha. In this
case, Bansi Ballabh, owner of Plot No. 215 and Plot No.216, filed
appeal. Though this appeal was limited to challenging the
allotment made to Deoki Devi, the Settlement Officer,
Consolidation, while allowing the appeal, virtually nullified the
original consolidation order and took away the land allotted to
the appellant in Plot No. 215 and Plot No. 216 and re-allotted him
his land in Plot No. 212/2, allotted land to the Gaon Sabha in
Plot No. 216 and allotted the front portion of the land in Plot No.
212/2 to Premwati and Deoki Devi. We have perused the map
[Annexure P-6] and from this it is clear that the appellant would
have had access to the road when the land was allotted to the
Gaon Sabha as bachat land. The appellant could have also used 
8
the land and his access to the road would not have been affected,
had that portion of the land been not allotted to Deoki Devi. This
order virtually nullified the earlier order and, therefore, the
appellant was well within his rights to challenge the order passed
by the Settlement Officer, Consolidation in the appeal filed by
Bansi Ballabh. It is well settled position of law that if an order
adversely affects any party, he has a right to challenge it. The
appellant was not a party to the appeal filed by Bansi Ballabh,
but by the order passed by the Settlement Officer, Consolidation
in the appeal filed by Bansi Ballabh, the appellant was virtually
denied access to the road. Therefore, the Deputy Director,
Consolidation was justified in entertaining the revision filed by
the appellant herein and making re-allotments, as indicated
hereinabove.
10. It has been contended by the appellant that the original
holding of Deoki Devi in Plot No. 319 was almost 2 kilometres
away. It may be true that she has been allotted a smaller portion
of land but the purpose of the Consolidation Act is to prevent
fragmentation of a holding and to have one common holding.
The Deputy Director, Consolidation rightly allowed the revision.
9
11. We are of the considered view that the High Court erred in
holding that the appellant had no right to challenge the order of
the Settlement Officer, Consolidation in the appeal filed by Bansi
Ballabh because he had not challenged the original order in
original proceedings whereby the front portion of the land was
treated as bachat land. As we have pointed out above, the
second order virtually nullified the earlier order and this gave a
fresh cause of action to the appellant and he could challenge the
same. As far as Premwati is concerned, she did not challenge the
order passed by the Deputy Director, Consolidation. We also find
that the writ court did not take into consideration the averments
made in Para 23 of the writ petition wherein Deoki Devi had
prayed that she should be re-allotted Plot No. 319 and granted
Rs.20,000/- as compensation for the construction she had raised
in Plot No. 212/2.
12. In view of the above discussion, we set aside the order of the
High Court and restore the order passed by the Deputy Director,
Consolidation.
13. The respondent, Deoki Devi is directed to remove the entire
construction at her own cost and hand over vacant and peaceful 
10
possession of the land to the appellant within 30 days from today
failing which the appellant can take assistance of the Court to
take possession of the land and building in which event, Deoki
Devi will not be entitled to the cost of the structure or any other
damages.
14. The appeal is allowed in the aforesaid terms.
………………………..J.
(Madan B. Lokur)
…………………………J.
(Deepak Gupta)
New Delhi
February 16, 2018