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CASE NO.: Appeal (civil)  4737 of 2007

PETITIONER: N.R. Constructions Pvt. Ltd

RESPONDENT: Sri Ram Badan Singh & Ors

DATE OF JUDGMENT: 09/10/2007

BENCH: Tarun Chatterjee & P. Sathasivam

JUDGMENT: JUDGMENT (Arising out of SLP (C) No. 15858 OF 2006) P. Sathasivam, J. 1)              Leave granted.  2)              This appeal is directed against the judgment dated  19.07.2006 passed by the High Court of Jharkhand at  Ranchi in C.R. No.65 of 2006 whereby the learned single  Judge dismissed the Civil Revision filed by the appellant  herein against the order dated 28.06.2006 passed by the  Subordinate Judge-I, Bokaro in Execution Case No. 2 of  2001 rejecting the appellant\022s prayer for adjustment of the  cross-award under the provisions of Order XXI Rules 18  and 19 of the Code of Civil Procedure. 3)              The only question, inter alia, arises in this appeal is  whether the provisions of Order XXI Rules 18 and 19 of the  C.P.C. are applicable in case of adjustment of the cross- award as claimed by the appellant herein? 4)              The appellant entered into a partnership with the  respondents and a partnership deed was executed on  14.04.1992.  The purpose of the partnership was for  completion of certain contract work which the appellant had  obtained.  One of the terms of the agreement provided for  arbitration, i.e., - \023that if there be any dispute among the  partners, the same can be referred to the  Arbitrator/Arbitrators as appointed by the partners who  would decide the names in accordance with the provisions  of the Indian Arbitration Act, if not otherwise settled by the  partners with mutual consent.\024 5)              As the disputes which arose in the year 1995 among  the partners could not be settled by mutual agreement and  the work could not be completed, the partners, by mutual  consent, appointed four persons as Arbitrators.  On  19.04.1997, the Arbitrators, after hearing both the parties,  submitted their award.  There is no specific reference  whether the award is an interim award or a final award.   According to the appellant, the award dated 19.04.1997 was  acted upon by the parties and was never challenged by any  of them.  Thereafter, the Arbitrators passed various awards.   It is not in dispute that none of those awards passed after  19.4.1997 was ever challenged by any of the parties.   Finally on 25.11.2000, the Arbitrators passed an award.   According to the appellant, in this award, it was not stated  that whether the issues covered by the earlier awards and  especially the award dated 19.4.1997 are to be merged in  the final award. 6)              The appellant herein, being aggrieved by the award  dated 25.11.2000, filed an application under Section 34 of  the Arbitration and Conciliation Act, 1996 (hereinafter  referred to as \023the Act).  The respondents filed Execution

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Case No. 2 of 2001 for enforcement of the Award dated  25.11.2000.  By order dated 27.6.2003, the application filed  by the appellant under Section 34 of the Act was dismissed  by the learned subordinate Judge.  On 1.7.2003, the  appellant herein filed Execution Case No. 5 of 2003 for  enforcement of the award dated 19.4.1997.  Against the  dismissal of the application filed under Section 34 of the  Act, on 26.8.2003, the appellant filed an Arbitration Appeal  No. 6 of 2001 before the High Court of Jharkhand at  Ranchi.  By order dated 29.4.2004, the High Court  dismissed the said appeal.  The special leave petition  against the said order was also dismissed by this Court on  10.1.2005 with a modification as to the rate of interest.   7)              The respondents filed an objection under Section 47  of the C.P.C. in Execution Case No.5 of 2003.  The said  objection was numbered as Misc. Case No. 7 of 2005.  The  case of the respondents before the Executing Court was  that the so-called award of 19.04.1997 was nothing but a  provisional direction of the Arbitrators for successful  completion of the job and it cannot be treated as an interim  award and was not enforceable as an arbitral award.  All the  directions given in the award dated 19.04.1997 have  merged in the award dated 25.11.2000.  After hearing both  the parties, the Executing Court by order dated 27.5.2005  dismissed Misc. Case No. 7 of 2005 holding that the interim  award was not executable.  Aggrieved by the same,  respondent No.1 herein preferred C.R.No. 75 of 2005.   Though the Civil Revision stands admitted but no stay of  execution has been granted till date.  Thereafter, the  appellant filed an application under Order XXI Rules 18 and  19 of the C.P.C. read with Section 36 of the Act in  Execution Case No. 2 of 2001 for adjustment of the amount  and for recording of full satisfaction of the amount.  By  order dated 28.6.2006, the executing Court, after finding  that the question of cross-decree under Order XXI Rules 18  and 19 is not maintainable, rejected the said application.   Questioning the said order, the appellant preferred C.R.No.  65 of 2006 before the High Court of Jharkhand at Ranchi.   By the impugned order dated 19.07.2006, the High Court  dismissed the Revision.  Hence, the present appeal by way  of special leave has been filed before this Court. 8)              We have heard Dr. R.G. Padia, learned senior  counsel, appearing for the appellant and Mr. Bhaskar P.  Gupta, learned senior counsel, appearing for the  respondents. 9)              Though the learned senior counsel appearing on  either side, made elaborate submissions as to awards dated  19.4.1997 and 25.11.2000 and applicability of Order XXI  Rules 18 and 19 of C.P.C., in the light of the order to be  passed hereunder, we are of the view that there is no need  to traverse the same.  However, in order to understand the  rival claim, it is useful to refer Order XXI Rules 18 and 19  which read as under: \023Rule 18. Execution in case of cross-decrees- (1)  Where applications are made to a Court for the  execution of cross-decrees in separate suits for the  payment of two sums of money passed between the  same parties and capable of execution at the same  time by such Court, then \026 (a)     if the two sums are equal, satisfaction shall be  entered upon both decrees; and (b)     if the two sums are unequal execution may be  taken out only by the holder of the decree for the  larger  sum and for so much only as remains after  deducting the smaller sum, and satisfaction for

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the smaller sum shall be entered on the decree for  the larger sum as well as satisfaction on the  decree for the smaller sum. (2)     \005\005\005\005\005\005\005\005\005\005\005\005 (3)     \005\005\005\005\005\005\005\005\005\005\005.. (4)     \005\005\005\005\005\005\005\005\005\005\005..\024 \023Rule 19. Execution in case of cross-claims under  same decree \026 Where application is made to a Court  for the execution of a decree under which two parties  are entitled to recover sums of money from each other,  then \026 (a) if the two sums are equal, satisfaction for both shall  be entered upon the decree; and (b) if the two sums are unequal, execution may be  taken out only by the party entitled to the larger sum  and for so much only as remains after deducting the  smaller sum, and satisfaction for the smaller sum  shall be entered upon the decree.\024

Both the learned senior counsel fairly admitted that Rule 18 is  not applicable to the case on hand.  From a bare reading of the  Rules, extracted supra, it is clear that Rule 18 is applicable in  the case where the applications are made to the Court for  execution of the cross-decrees in separate suits for payment of  two sums of money passed between the same parties and   Rule 19 is applicable in the case where the application is made  to the Court for the execution of a decree under which two  parties are entitled to recover sums of money.  As rightly  observed by the High Court, in the case on hand, neither the  application has been made for execution of cross-decrees in  separate suits for the payment of money in between the  parties nor the application is for execution of a decree in which  the parties are entitled to recover sums of money from each  other.  In our opinion, in the instant case, the particulars  furnished clearly show that the applications were in respect of  two awards in the same arbitration case and as such the  provisions of Rules 18 and 19 of Order XXI of C.P.C. are not  applicable. It is also relevant to mention that in the Objection  Petition under Section 34 of the Act the issue regarding  interim award and final award came up for consideration  before the subordinate Court, Bokaro.  The said objection  petition was dismissed on 27.6.2003 and the appeal preferred  also met the same result at the hands of the High Court of  Jharkhand.  This Court also confirmed the order of the High  Court except in the rate of interest.  In the light of these  materials and earlier orders including this Court and various  clauses in the awards dated 19.04.1997 and 25.11.2000,  learned subordinate Judge rejected the petition filed by the  appellant herein.  The High Court by the impugned order  accepted the said factual conclusion and dismissed the  Revision. 10)             In view of the conclusion based on the factual  details furnished in both the execution cases while agreeing  with the said conclusion of the Courts below, we are of the  view that there is no need to refer various decisions relied on  by both the parties.  On the other hand, we are in agreement  with the said conclusion. 11)             In the light of the above discussion, the appeal fails  and the same is dismissed.  There shall be no order as to  costs.