1. KHILJI ARIF HUSSAIN, J.--- The appellant preferred the appeal against the following order dated 3.9.2001 passed in Execution Application No. 150 of 2000:- "The objection taken by the decree holder is not tenable as the amount of decree with mark-up has not been disputed. The decree has not been challenged. The counsel for the J/D has only reservation regarding the calculation, Mr. M.G. Dastgir has no objection if the Nazir is directed to calculate the amount of mark-up at the rate of 15% on two amounts from the date mentioned in the decree, which are 3.1.1985 and 3.3.1999 on Rs.5,53,840/- and Rs.1,18,485/- respectively and to encash the F.D.R. Lying with the Nazir as security and pay the amount to the decree-holder, if any amount is left be paid to the J/D. However, {Vol.V Dawood Cotton Mills V. K.F. Development Corp. Ltd. 357 (Khilji Arif Hussain, J.)
2. J/D is directed to make payment within 15 days 'failing which, the direction to the Nazir is to be complied with."
3. Brief facts of the case are that the dispute relating to payment of bill, etc. In respect of 'a construction contract between the appellant and the respondent was referred to Sole-Arbitrator Justice (Retd.) Agha A.I Haider, where respondent filed claim of Rs.40,63,321/- with prayer for interest at the rate of 2% per month on it from 21.4.1998. The learned Arbitrator after recording the evidence and hearing the parties awarded a sum of Rs.5,53,840/- and Rs.68,485/- in favour of respondent while rejecting the counter claim of the appellant. The said award was filed in this Court and registered as Suit No. 13 of 1995. The respondent filed objections under Sections 30 and 33 of the Arbitration Act seeking its modification, whereas appellant had not filed any objection.
4. After hearing the objections, the learned Single Judge of this Court by Pais judgment dated 3.3.1999 modified the Award holding that the respondent is entitled to the mark-up at the rate of 15% per annum on the sum of Rs.553,840/- with effect form 3.1.1985 till its payment and further that the respondent being entitled to the mark-up in relation to a sum of Rs.1,18,485/- from the date of decree till payment. The appellant after the award was made rule of Court and ,after passing of decree in terms of modified Award did not prefer any appeal against the said judgment and decree questioning the judgment/decree passed by this Court.
5. The respondent filed Execution Application No. 150 of 2000 on 20.5.2000 i.e. Almost after one year of passing of the judgment and decree, the appellant filed counter-affidavit/objection in the execution proceedings and stated that the appellant had not filed any objection on the award given by Sole-Arbitrator and that till the filing of the execution application the appellant was never informed or asked by the decree-holder for the payment of decretal amount.
6. The learned Judge of the Executing Court after hearing the parties passed the order referred above. From the perusal of the said order it appears that only objection taken before the execution Court was about the calculation of the mark-up in terms of decree passed by the Court.
7. Heard Mr. Abrar Hassan, learned counsel for the appellant and Mr. M.G. Dastgir, learned Advocate for the for the respondent.
8. The learned Advocate for the appellant Mr. Abrar Hassan questioned the legality of the judgment and decree making award rule of 'the Court in execution proceedings on the grounds (i) that Court can grant interest while making award rule of the Court only from the date of judgment/decree, i.e. From 3.3.1999, whereas interest awarded from 3.1.1985 is illegal and unlawful decree to this extent at least cannot be executed; (ii) the appellant can question judgment and decree passed by the Court making the award rule of the Court in execution proceedings, if the same is being in violation of Section 29 of the Arbitration Act, even if no appeal has been filed by the appellant against the said judgment and decree; and that the execution Court can go behind the decree in the circumstances of the case.
9. The learned Advocate for the appellant strongly relied upon Section 29 of the Arbitration Act in support of his objection No. (i) and contended that in terms of Section 29 of the Arbitration Act, 1940 Court can pass decree with interest only from the date of decree and not from the date prior to the date of decree.
10. We have given our anxious consideration to the arguments of the learned Advocate.
11. It appears from the judgment that both the parties argued at length before the learned Single Judge on the point whether Court can grant interest prior to the date of decree; and after discussing respective contentions of the learned Advocates, the learned Judge modified the award.
12. Section 15 of the Arbitration Act conferred powers upon the Court to modify or correct an Award.
13. The learned Single Judge while making award rule of the Court, modified the: same granting interest from 3.1.1985 in exercise of powers under Section 15 of the Arbitration Act. As we are not sitting in appeal against the judgment and decree passed by the learned Judge modifying the award granting interest from 3.1.1995, which has thus attained finality as such we are not making any comment on the said judgment and confined ourselves only to the extent that whether in the appeal arising out of order passed in execution proceedings we can interfere in the judgment and decree passed by the Single Judge.
14. Mr. Abrar Hassan, Advocate for the appellant, support of his second objection relied upon the case of B. V. Aatan Kar and others v. C. G. Sastry (AIR 1961 SC 272) and Faqir Abdullah and others v.
15. Government of Sindh (PLD 2001 SC 131). The principle laid down in both the cases are quite distinguishable on the basis of facts and are not applicable on the facts of the present case. In the case of B. V. Patankar, the Supreme Court of India refused to execute the decree, in view of the provision in the Rent Controlers order of 1948, which provides that a tenant in 'possession of house shall not be evicted therefrom whether in execution of decree or otherwise except in accordance with the provisions or .................. In the case of Faqir Abdullah (supra) Hon'ble Supreme Court has held that executing Court while exercising jurisdiction under Section 4 of Civil Procedure Code can determine the executability of a decree if it satisfied that the decree is a modify in the eye of law or has been passed by Court having no jurisdiction or execution of the decree would not entrench the legal rights of decree-holder is refused in execute on the decree has been passed in violation of any provision of law.
16. Admittedly after modifying the award and passing the decree in terms of it, the appellant has not challenged the said decree although the said modification were ordered. In presence of the appellant Mr. M.G. Dastgir, learned Advocate for the respondent, argued that the bill submitted by the respondent on 3.1.1985 was not paid by the appellant as the respondent had filed the claim before the arbitrator and in the said claim also requested to grant interest on the unpaid bill, which was declined by the learned arbitrator. The learned Advocate argued that after filing of award the appellant had not filed any objection and it is the respondent, who filed the objection requesting the Court to modify the award granting interest on the amount of award from the date of submission of the bill and the learned Judge modified the award in accordance with the law against which no appeal has been filed.
17. We do not find any illegality or infirmity in the impugned order whereby the learned Single Judge on the objection taken by the appellant regarding calculation of mark-up directed the Nazir to calculate the amount of mark-up at the rate of 15% on two amounts from the date mentioned in the decree.
18. The appeal as such is dismissed with no order as to costs. These are the reasons of our short order passed today. .