Calcutta High Court
India Media Services Private Limited vs Sbpl Infrastructure Limited on 18 February, 2026
Author: Supratim Bhattacharya
Bench: Sabyasachi Bhattacharyya, Supratim Bhattacharya
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In the High Court at Calcutta
Civil Appellate Jurisdiction
Original Side
The Hon'ble Mr. Justice Sabyasachi Bhattacharyya
And
The Hon'ble Mr. Justice Supratim Bhattacharya
APOT No. 1 of 2026
with
IA No: GA 1 of 2026
arising out of
EC No. 255 of 2022
India Media Services Private Limited
- Versus -
SBPL Infrastructure Limited
For the appellant : Mr. Krishnaraj Thaker, Sr. Adv.,
Mr. Dhruv Chadda,
Mr. Aurin Chakraborty,
Mr. Pradip Sancheti, ... Advs.
For the respondent : Mr. Jaydip Kar, Sr.Adv.,
Mr. Jishnu Chowdhury, Sr. Adv.,
Mr. Ratul Das,
Mr. Gaurav Khaitan, … Advs.
Heard on : 21.01.2026, 28.01.2026,
& 04.02.2026
Reserved on : 04.02.2026
Judgment on : 18.02.2026
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Sabyasachi Bhattacharyya, J.:-
1. At the outset, it catches our eye that a single appeal has been
preferred against several impugned orders. Although we have doubt
as to whether the practice and procedure of this Court permits a
single memorandum of appeal to be preferred against several
impugned orders, since the respondent has not raised any objection
in that regard, nor was the appellant put to notice on such issue
during arguments, we choose to overlook such technical flaw and
take up the appeal itself for adjudication on merits.
2. The present appeal has been preferred by the award debtor in an
arbitral proceeding between the parties, challenging the orders
dated December 10, 2025 and December 19, 2025 (as modified by
order dated December 22, 2025), passed by a learned Single Judge
of this Court in connection with EC No.255 of 2022.
3. The appellant in the present appeal initiated an arbitral proceeding,
inter alia seeking a declaration that a Nomination Agreement dated
December 5, 2005 entered into between the parties is null and void
and not specifically enforceable at the instance of the respondent,
delivery up and cancellation of the said agreement, and
consequential reliefs. In the said proceeding, the present respondent
entered appearance and took out a counter claim, seeking specific
performance of the self-same Nomination Agreement dated
December 5, 2005 and consequential reliefs.
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4. The said arbitral proceeding culminated in an award dated October
27, 2020, dismissing the statement of claim filed by the present
respondent and allowing the counter claim of the present appellant,
inter alia directing the specific performance of the Nomination
Agreement by execution of a sale deed by the claimant/respondent
in favour of the respondent/appellant within two months from the
date of receipt of the award in respect of the property mentioned in
the First Schedule (Schedule Property) as mentioned in the
Nomination Agreement on acceptance of the balance sum of
₹14 crore from the respondent/present appellant, as the
respondent/appellant had already paid the earnest money of
₹1 crore.
5. Being aggrieved by the award, the present appellant preferred an
application under Section 34 of the Arbitration and Conciliation Act,
1996 (hereinafter referred to as the “1996 Act”), giving rise to AP
(Com) No. 191 of 2024. Simultaneously, an execution case, being
EC No. 231 of 2021, was also filed by the appellant, seeking leave to
examine the respondent through its officers in accordance with
Order XXI of the Code of Civil Procedure, 1908 (CPC) together with
the prayer mentioned in Column 10 of the said execution petition.
6. On the other hand, EC No. 255 of 2022 was filed by the award
holders/respondent, praying for execution of the arbitral award
dated October 27, 2020.
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7. By a judgment dated September 24, 2025, the said application
under Section 34, bearing AP (Com) No. 191 of 2024 (AP No.54 of
2021), along with EC No. 231 of 2021, were dismissed.
Simultaneously, the learned Single Judge allowed EC No. 255 of
2022, directing the petitioner/appellant to strictly comply with the
directions mentioned in the arbitral award. In default, the Registrar
or his nominated officer, not below the rank of Assistant Registrar,
Original Side High Court at Calcutta was directed to execute the
Deed of Conveyance in favour of the respondent (SBPL), if the
petitioner/appellant failed to do, as directed by the arbitrator in the
award, within a fortnight.
8. The appellant has preferred a challenge against the dismissal of the
application under Section 34 of the 1996 Act, which is now pending.
9. Subsequent to the judgment dated September 24, 2025, the learned
Single Judge passed certain orders in connection with the
application for execution of the award, being EC No. 255 of 2022,
which are the subject-matter of challenge in the present appeal.
10. Learned senior counsel appearing for the award debtor/appellant
argues that the impugned orders were made after the learned Single
Judge had become functus officio. It is contended that upon having
allowed EC No. 255 of 2022, the learned Single Judge had no
jurisdiction to pass any further order, save corrections under
Section 152 of the CPC or on review, in accordance with order XX
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11. In support of such contention, learned senior counsel sites a Full
Bench Judgment of this Court in Mallikarjuna Rao & Others vs.
State of West Bengal, reported at (2016) SCC OnLine Cal 3952, and a
decision of the Hon’ble Supreme Court in State Bank of India and
Others vs. S.N.Goyal, reported at (2008) 8 SCC 92.
12. Learned senior counsel for the appellant refutes the contention of
the award holder/respondent to the effect that the impugned orders
were merely procedural, being in the nature of extension of time to
execute the Deed of Conveyance, and contends that the learned
Single Judge accepted the prayer of the Registrar, Original Side and
directed him to dispose of the objections raised by the appellant vide
order dated December 10, 2025, which were not merely procedural
but substantive in nature. Furthermore, the learned Single Judge
accepted the prayer of the Registrar and directed him to finalize the
conveyance within the time fixed vide order dated December 9,
2025. By the order dated December 22, 2025, the learned Single
Judge also directed the Registrar to verify a map forming part of
Exhibit C-22 for the purpose of execution of the deed. It is
submitted that such orders amounted to substantive adjudications
and do not come within the purview of Sections 151 or 152 of the
CPC, which power is only vested in the court making the decree and
not the executing court. Moreover, no formal written application
under the said provisions was filed in the present case.
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13. Learned senior counsel appearing for the appellant next contends
that the impugned orders are liable to be set aside even otherwise.
In the order dated December 10, 2025, it was recorded that from the
report dated November 7, 2025 filed by the Registrar, it would
appear that the appellant had filed thirteen objections before the
Registrar. It is argued that once it was brought to the notice of the
learned Judge that such objections were raised, the learned Single
Judge ought to have directed the objections to be placed before the
competent Court for adjudication in terms of the Order XXI Rule
34(3) of the CPC, read with Chapter XVII Rule 11 of the Original
Side Rules (OS Rules) and Appendix E-form 6 thereof. However,
instead of doing so, the learned Single Judge granted extension of
time and directed the Registrar to dispose of the objections. It is
submitted that the impugned orders only take note of the objections
having been filed but there was no adjudication on the said
objections by the learned Single Judge himself.
14. Monitoring the execution of conveyance, it is submitted, cannot be
equated with judicial orders made upon adjudication of objections
under Order XXI Rule 34(3), which are appealable under Order XLIII
Rule 1(i) of the CPC. The Registrar did not seek any approval of the
learned Judge on the draft conveyance.
15. It is argued that the adjudication under Order XXI Rule 34(3), CPC
has to be done by the Court itself and cannot be delegated to an
officer of the Court, unlike the ministerial act as contemplated in
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Order XXI Rule 34 (5), read with Chapter XVII Rule 28 of the OS
Rules.
16. It is submitted that the orders of the Registrar have been separately
challenged before the Chamber Judge in terms of Chapter VI Rule
15 of the OS Rules and are not the subject-matter of the present
challenge.
17. It is next contended that the learned Single Judge recorded in his
order dated December 19, 2025 that the Registrar was unable to
execute the conveyance, being not able to compare the map
provided by the respondent with the draft deed; this is because
there was no map on the record either before the Registrar or
mentioned in the award or the judgment dated September 24, 2025,
nor in the Nomination Agreement, of which specific performance
was granted.
18. No reasons were given in the impugned orders justifying the
selection of Exhibit C22, which was a part of the arbitral records,
particularly in the absence of any mention of the said exhibit
throughout the award itself.
19. It is contended that the respondent seeks to blow hot and cold in
the same breath by contending that the impugned orders were
procedural in nature, but still standing by the introduction of a new
document, i.e., Exhibit C22, which was not mentioned in the award
of the Learned Arbitrator.
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20. Thus, it is argued that the executing court not only went behind the
decree (award) but entered into the records of the reference, which
were not before the said Court.
21. The learned Single Judge, by the order dated December 22, 2025,
directed the Registrar to verify the said Exhibit with the map
provided by the respondent and the schedule of the draft as given in
the award without making any judicial order, upon verification of
the map in Exhibit C-22 himself, nor did the learned Single Judge
direct incorporation of the map in Exhibit C-22 in the conveyance.
Instead, it was left to the Registrar to verify the map, which was not
permissible, since the Registrar was not empowered to discharge
any judicial function, his power being limited to the ministerial task
of execution of the Deed of Conveyance.
22. It is submitted by the appellant that any omission in an award can
only be corrected in terms of the 1996 Act by the Arbitrator himself
or, in a limited manner, by the Section 34 Court, and not by the
Executing Court. Thus, the directions passed in the impugned
orders partake of a substantive character and comprise of
contentious issues which were required to be referred to the Judge
in Chambers under Chapter XVII, Rule 11 of the OS Rules.
23. There being no timeline stipulated in the initial order disposing of
the execution case, dated September 24, 2025, the impugned orders
cannot be termed as mere extensions of time, which would be
procedural in nature.
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24. The setting of a new timeline, it is argued, is contrary to the
requirement of Order XXI Rule 34 to CPC, read with Rule 11 of
Chapter XVII of the OS Rules, which provides that a minimum of 8
days is to be given and summons in Form VI of Appendix E of the
OS Rules is to be issued for a hearing to take place before the
Chamber Judge as provided in Serial No.13 of Chapter VI, Rule 11
of the OS Rules.
25. Despite multiple requests being made by the appellant to refer the
objections raised by it to the Chamber Judge under Rule 51 of the
Reference Rules, the objections were dealt with and rejected by the
Registrar himself, without any reference to the court.
26. Learned counsel for the appellant next contends that the
respondent has offered to put in the court the sum of ₹ 14 Crore,
payment of which was a pre-condition for execution of the
conveyance. However, such offer is too late and too little and is
contrary to the arbitral award, which requires the sum to be paid
prior to the execution of the conveyance.
27. In reply, learned senior counsel appearing for the respondent places
reliance on relevant portions of the arbitral award to show that the
learned Single Judge acted in consonance of and in furtherance of
the same in letter and spirit.
28. In the judgment dated September 24, 2025, which is not under
appeal in the present proceeding, the learned Single Judge granted
a fortnight’s time to execute the Deed of Conveyance in favour of the
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respondent; in default, the Registrar was to execute the Deed. A
review application has been preferred against the main part of the
order dismissing the Section 34 application by the award
debtor/appellant, which is pending adjudication before the
concerned Judge.
29. The substantive direction on the Registrar to execute the
conveyance on the failure of the award debtor to do so, as
comprised in the judgment dated September 24, 2025, is now under
appeal before the regular court taking up such appeals against
execution orders, in APOT No. 91 of 2025. Thus, the said direction
is not the subject-matter of this appeal.
30. It is apparent from the impugned order dated December 10, 2025
that it arose at the instance of the Registrar, OS for the purpose of
considering a detailed report furnished by the Registrar on
November 7, 2025, dealing with the thirteen objections filed by the
award debtor/appellant, and explaining why the Registrar could not
execute and register the conveyance, seeking extension of the time
to finalize and register the Deed of Conveyance. The court, upon
consideration of the report and on the request of the Registrar,
extended the time to execute and register the conveyance, in terms
of the direction dated September 24, 2025, and called for a further
report from the Registrar. By the subsequent order dated December
19, 2025, the Court again considered the report submitted by the
Registrar, dated December 18, 2025, and taking note of the said
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report, further extended the time to execute and register the
conveyance till January 7, 2026.
31. The third order dated December 22, 2025, merely corrected certain
typographical errors in the order dated December 19, 2025.
32. Thus, it is argued that the substance of the orders dated December
10, 2025 and December 19, 2025 is extension of time for the
Registrar to execute and register the conveyance in terms of the
parent order dated September 24, 2025. The court did not
adjudicate any lis between the parties in the said orders and they
were merely procedural in nature.
33. Next addressing the issue of functus officio, learned senior counsel
appearing for the respondent argues that although EC No. 255 of
2022 was allowed in terms of the order dated September 24, 2025,
the subsequent orders dated December 10 and December 19, 2025
are merely procedural orders extending the time sought by the
Registrar. Thus, there was no adjudication on merits by the
impugned orders, which were intended merely to give effect to the
award.
34. Learned senior counsel for the respondent contends that the Court
has inherent powers to extend time under Sections 148 and 151 of
the CPC as well as under Rule 46 of Chapter XXXVIII of the OS
Rules in case of procedural matters. In the present case, the Court
merely extended the time to enable the Registrar to finalise the draft
conveyance according to the Schedule accepted and set out in the
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award and also to finalise the map or plan to be annexed thereto,
which are all within the domain of the Executing Court.
35. In support of such contention, learned senior counsel cites a
decision of the Hon’ble Supreme Court in Mahanth Ram Das v.
Ganga Das, reported at AIR 1961 SC 882, and Debabrata Maiti v.
The Mallabhum Gramin Bank & Ors. reported at (2008) 3 Cal LP 85,
the latter being a co-ordinate Bench judgment of this Court.
36. Insofar as the plan being annexed to the conveyance is concerned,
the respondent submits that the said document formed a part of the
records of the Arbitral Tribunal as Exhibit C-22 and was also
contained in the original document of conveyance dated July 8,
2010. The Schedule in the award talks about the map/plan which
was not annexed to the Nomination Agreement, though the
Schedule of the Nomination Agreement referred to the plan. The
award debtor was directed to execute conveyance of the same
property of which they had obtained a conveyance in execution of
an earlier decree passed by the Court. Thus, the executing court
neither amended the award nor made any modification to the award
but merely implemented it in letter and spirit.
37. While dealing with the objection of the appellant that the execution
of the conveyance was in violation of Order XXI Rule 34, CPC, read
with Chapter XVII, Rules 11 and 28 of the OS Rules, learned senior
counsel for the respondent argues that Order XXI Rule 34 lays down
the procedure that the court should follow in having the draft
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conveyance executed and confers jurisdiction on the executing court
to ensure settling the draft conveyance, consider objections and
thereafter to finalize the draft and have it executed and registered. It
also specifies that in the event the judgment debtor refuses to obey
the decree, the decree holder may prepare a draft of the document
in terms of the decree and deliver it to the court.
38. It is for the court, upon considering the objections to the draft by
the judgment debtor, to approve or alter the draft as it deems fit.
39. Thereupon, the decree holder is to deliver to the court a copy of the
draft with such alteration and subsequently, on compliance with the
submission of stamp paper, etc., the draft is required to be
executed.
40. In the present case, Order XXI Rule 34 has been substantially
complied with. The court had assigned to the Registrar the duty to
finalize the draft. It is argued that the provisions of Order XXI Rule
34, CPC do not prohibit the court from undertaking such a course
as settling of a draft conveyance requires comparing of the
Schedule, looking into the chain deeds, finalizing the averments in
relation to the same and incorporation of a habendum clause, which
are essentially required to be complied with. In the instant case, the
Registrar who was asked to execute the deed was entrusted with the
job of looking into such details.
41. Although objections were raised by the judgment debtor before the
Registrar, they were mostly on account of jurisdiction and other
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issues not related to the Deed of Conveyance itself, except one or
two objections touching the title deed. Those objections, raised on
the text of the document, were mostly related to typographical
errors, which were dealt with by the Registrar in detail and placed
before the court by way of reports, which were approved by the
court, extending the time for the purpose of execution and
registration of the document.
42. It was open to the appellant to approach the court and raise their
objections before it in terms of Order 21, Rule 34 (3) of the CPC if
they were aggrieved by any of the findings of the Registrar, which
was never done by the award debtor/respondent when the matter
came up before the court on December 10 and December 19, 2025.
43. Thus, the appellant, having not exercised such right before the
court by raising any objection to the document, has waived such
right.
44. Since the award debtor/appellant never raised any objection to the
draft before the learned Judge, nor sought any alteration in the
draft before the court, the court never had any occasion to deal with
any such objection.
45. Hence, the appellant is estopped from raising the issue in the
present appeal for the first time.
46. Regarding the alleged non-compliance of Chapter XVII, Rule 11 of
the OS Rules, it is submitted by the respondent that the notice
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under Rule 11 was duly issued by the Registrar, thereby complying
with the said provision.
47. The provision of the notice under Order XXI Rule 34 (2) to be
returnable before a Judge in Chambers, as provided in Rule 11 of
Chapter XVII of the OS Rules, operates only for the purpose of
causing the draft to be served on the judgment debtor, together with
a notice requiring his objection, if any, to be made within such time
as the court fixes in this behalf. In the present case, objections were
invited by the Registrar and were subsequently placed before the
court from time to time in the form of reports, with the reasoned
orders of the Registrar, upon consideration of which the court
extended the time for execution of the conveyance. Thus, there was
substantial compliance with the said provision of law.
48. Learned senior counsel appearing for the respondent argues that
under the scheme contemplated under Order XXI Rule 34, CPC, it is
also obligatory for the judgment debtor to raise objection before the
court, whereas the court was never appraised of any subsisting
objection by the award debtor/appellant after the Registrar disposed
of the objections.
49. Chapter XVII Rule 28 of the OS Rules speaks about execution of
document by the Registrar, and specifically authorizes the Registrar
to do so. Thus, there was no violation of the said provision as well.
50. Learned senior counsel for the respondent further argues that in the
memorandum of the present appeal, the only grounds urged are
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in respect of the court becoming functus officio and the impugned
orders being in modification of the arbitral award. None of the other
points were urged in the grounds of the appeal, nor feature in the
connected stay application. Thus, those grounds are beyond the
pleadings contained in the appeal.
51. In fact, the appellant voluntarily filed its objections before the
Registrar and never approached the court or applied before it, either
on December 10 or December 19, 2025 or at any time prior thereto.
52. Having full knowledge of the draft conveyance which was going to be
executed, the appellant appeared before the Registrar.
53. The contention that the objections were dealt with by the Registrar
and not by the court was never raised before the learned Trial
Judge, nor in the memorandum of the present appeal.
54. Regarding payment, it is argued that the award directs payment of
₹14 crore by the award holder to the award debtor and
₹ 8,15,73,616/- with 18% per annum interest up to the date of
payment by the award debtor as cost to the award holder. After
calculation of interest up to date, nothing is due and payable by the
award holder, since the aforesaid dues more than cancel out each
other and tilt in favour of the award holder/respondent. However,
without prejudice to such contention, the award holder expresses
its readiness and willingness to deposit in the court the entire
amount of ₹14 crore, provided the appellant is directed to deposit
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the amount of cost, with up-to-date interest, as directed in the
award, subject to further directions for adjustment/set-off.
55. It is pointed out that in the meantime the Registrar has executed a
Deed of Conveyance in favour of the award holder. Thus, the
present appeal only survives on paper.
56. Lastly, it is argued that the present appeal is not maintainable
within the meaning of Order XLIII Rule 1 (i), which provides that the
judgment debtor raising an objection to the draft of a document or
of an endorsement on the conveyance before the court could prefer
such appeal.
57. In the instant case, when the Registrar put up the draft along with
his report to the court after disposal of the objections, none of such
objections were raised or re-agitated before the court at the stage of
passing the impugned orders. Having never raised the same before
the court, no appeal lies under Order XLIII Rule 1 (i) of the CPC at
the behest of the appellant.
58. Upon hearing the arguments of the parties, the first question which
falls for consideration is whether the learned Single Judge was
rendered functus officio after September 24, 2025.
59. It is well settled that an award of specific performance is executory
in nature. Even after passing of an award of specific performance, it
still remains for the decree to be executed and registered pursuant
thereto, only upon which the award reaches its culmination.
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60. There are several procedural aspects involved between the passing
of the award and the satisfaction of the same by enforcement, by
way of execution and registration of a Deed of Conveyance, if the
award debtor chooses not to comply with the award, as in the
present case.
61. A careful perusal of the judgment dated September 24, 2025
indicates that the substantive portion of the same was dedicated to
adjudication of the challenge under Section 34 of the 1996 Act to
the main award, which was ultimately dismissed. As a consequence,
it was recorded that EC No. 255 of 2022, the application for
enforcement of the award, was allowed. However, simultaneously
with the said execution case being allowed, the learned Single Judge
directed the award debtor/appellant to strictly comply with the
directions mentioned in the award dated October 27, 2020. In
default, the Registrar or his nominated officer, not below the rank of
Assistant Registrar, Original Side, High Court at Calcutta, was
directed to execute the Deed of Conveyance in favour of the award
holder, if the award debtor failed to do so within a fortnight.
62. It was also recorded that all the costs and expenses for effecting the
Deed of Conveyance at the office of the Registrar of Assurance,
Hyderabad was to be borne by the award holder.
63. Thus, although the expression “allowed” was used in respect of EC
No. 255 of 2022, further directions were passed in respect thereof.
Hence, subsequent steps still remained to be completed before the
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award was finally satisfied. Unless an award is satisfied, it cannot
be said that the execution is complete.
64. Thus, the “allowing” of EC No. 255 of 2022 was merely nominal,
contemplating further steps to be taken as per the directions of the
executing court.
65. As such, it cannot be said by any stretch of imagination that the
executing court became functus officio after passing the judgment
dated September 24, 2025.
66. In fact, the award debtor/appellant vociferously relies on Order XXI
Rule 34, CPC, which itself envisages further steps to be taken
subsequent to a decree for execution of a document, taking within
its purview several facets, in the event the judgment debtor neglects
or refuses to obey the decree. First, the decree holder is required to
prepare a draft of the document in accordance with the terms of the
decree and deliver the same to the court. Secondly, the court, under
sub-rule (2) of Rule 34, is to cause the draft to be served on the
judgment debtor, together with a notice requiring his objections, if
any, to be made within such time as the court fixes in this behalf.
67. Under sub-rule (3), where objections are made in writing, the court
may make such order approving or altering the draft as it thinks fit,
whereupon the decree holder is to deliver to the court a copy of the
draft with such alterations, if any directed, and thereafter the deed
is to be executed.
68. The relevant provisions in such regard are set out below:
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Order XXI Rule 34, CPC
34. Decree for execution of document, or
endorsement of negotiable instrument.- (1) Where a decree
is for the execution of a document or for the endorsement for a
negotiable instrument and the judgment-debtor neglects or
refuses to obey the decree, the decree-holder may prepare a
draft of the document or endorsement in accordance with the
terms of the decree and deliver the same to the Court.
(2) The Court shall thereupon cause the draft to be served on
the judgment-debtor together with a notice requiring his
objections (if any) to be made within such time as the Court
fixes in this behalf.
(3) Where the judgment-debtor object to the draft, his
objections shall be stated in writing within such time, and the
court shall make such order approving or altering the draft, as
it thinks fit.
4) The decree-holder shall deliver to the Court a copy of the
draft with such alterations (if any) as the Court may have
directed upon the proper stamp-paper if a stamp is required by
the law for the time being in force; and the Judge or such
officer as may be appointed in this behalf shall execute the
document so delivered.
(5) The execution of a document or the endorsement of a
negotiable instrument under this rule may be in the following
form, namely:- “C.D., Judge of the Court of
(or as the case may be), for A.B. in suit by E.F. against A.B.”
and shall have the same effect as the execution of the
document or the endorsement of the negotiable instrument by
the party ordered to execute or endorse the same.
(6) (a) Where the registration of the document is required under
any law for the time being in force, the Court, or such officer of
the court as may be authorised in this behalf by the Court,
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shall cause the document to be registered in accordance with
such law.
b) Where the registration of the document is not so required,
but the decree-holder desires it to be registered, the Court may
make such order as it thinks fit.
(c) Where the Court makes any order for the registration of any
document, it may make such order as it thinks fit as to the
expenses of registration.
Chapter XVII, Rule 11, Original Side Rules
11. Issue, service and return of notices.- All notices under
Section 145 or under Order XXI, Rules 2,16,22,34(2) of 37 of
the code, shall be issued by the Registrar or Master; notices
under Section 145, and under Order XXI, Rules 2, 34(2) and
37 being made returnable before the Judge in Chamber, and
notices under Order XXI, Rules 16 and 22, being made
returnable before the Registrar or Master. Every such notice
shall be returnable on a certain day to be therein mentioned,
and shall be served at least eight clear days before such date
unless the Registrar or Master shall otherwise order (Forms
Nos. 2,3,4,5,6 and 7)
69. The language of Rule 34(3) of Order XXI, CPC is extremely relevant
in the context. Two important aspects of the same are to be noted.
First, the scope of objections by the judgment debtor under the said
provision is not all-encompassing but is restricted solely to the draft
which has been furnished by the decree holder. Secondly, upon
such objections being made, the court is not required under the
said provision to pass reasoned order or to specifically adjudicate on
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such objections but is merely required to make such order as it
thinks fit, “approving or altering the draft”.
70. In the present case, all the objections raised by the award
debtor/appellant before the Registrar and his decisions thereon
were incorporated by the Registrar in his reports, which were duly
placed before the court on different occasions. The said objections
and the decisions of the Registrar thereon, as part of the reports,
are a part of the records of the present appeal and are perused by
us as well. The substantial majority of such objections relate to the
merits of the award and the jurisdiction of the learned Arbitrator as
well as the court, thus falling squarely the outside the limited ambit
of Rule 34(3), which envisages only objections to the draft. As
opposed to Section 47 of the CPC, which mandates the executing
court to determine “all questions arising between the parties to the
suit and relating to the execution, discharge or satisfaction of the
decree”, in an exercise under Order XXI Rule 34(3), the judgment
debtor is only permitted to object to the draft deed submitted by the
decree holder and no further. Hence, there is no substantive
adjudication involved in such an exercise. The very nature of
consideration of objections confined to the draft makes the exercise
procedural in character, as opposed to a substantive adjudication
on the executability of the decree/award.
71. Hence, even if it were to be assumed that the court itself did not
deal with the objections but merely approved the Registrar’s
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decision thereon, no prejudice would be caused to the appellant to
justify interference by an appellate court.
72. The second component of Rule 34(3) of Order XXII is that the order
of the court contemplated therein is merely on the approval or
alteration of the draft if the court so thinks fit. Conspicuously, the
provision does not mandate the court to adjudicate on the merits of
the objections at all or to pass reasoned orders thereon but, upon
such objections being placed before the court, to make orders
pertaining to the draft, either approving or altering the same, in its
discretion. Hence, the very premise of the challenge to the
impugned orders is flimsy, since the court, in its limited jurisdiction
under Order XXI Rule 34(3), was not required at all to deal with
substantive objections to the execution, which would come within
the domain of Section 47, CPC and not Order XXI Rule 34 thereof.
73. Rule 11 of Chapter XVII of the OS Rules operates on an entirely
different footing and does not speak about the subsequent stage of
dealing with the objections raised by the judgment debtor.
74. In terms of the said provision, as applicable in the present context,
all notices under Order XXI Rule 34(2) of the CPC were to be issued
by the Registrar, being made returnable before the Judge in
Chambers. In the present case, the said modality was complied
with and even the award debtor/appellant does not complain of the
notices not being in form or not being made returnable before the
Judge. Rule 11, by itself, does not contemplate any further stage of
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what the concerned Judge should do with the notices, once they are
made returnable before him.
75. Thus, nothing in Rule 11 of Chapter XVII of the OS Rules requires
the court to hear any objection whatsoever.
76. Rule 11 pertains only to the initial stage of notice and provides that
the same would be made returnable to the Judge in Chambers –
nothing more, nothing less.
77. Hence, the reliance on the said provision by the award
debtor/appellant, in its bid to challenge the orders of the learned
Single Judge, is entirely misconceived.
78. Rule 28 of Chapter XVII, on the other hand, contemplates acts
directed by the court under Order XXI Rule 34(5), CPC to be done
by the Registrar, which was fully complied with in the present case.
79. The appellant also relies on Serial No. 13 of Rule 11 of Chapter XVII
of the OS Rules which provides that all proceedings in execution or
otherwise under a decree or order and business relating thereto are
to be disposed of in Chambers by a Judge.
80. The said procedure is omnibus and all-comprehensive in nature and
includes not only objections under Order XXI Rule 34(3) but other
substantive objections under Section 47, CPC as well. The nature
of the two, however, cannot be equated. Whereas Section 47
permits the judgment debtor to raise substantive objections
pertaining to the very executability of the decree, Order XXI Rule
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34(3) operates within a much lesser compass, confining the
objections contemplated therein only to the draft deed.
81. Thus, reference to the said provision is also misplaced.
82. The appellant relies on S.N.Goyal (supra)1, which was rendered in a
different context than the present one. The question which was
being answered by the Hon’ble Supreme Court in Paragraph 28 of
the said report was “When did the appointing authority become
functus officio”. The scope of adjudication therein was the
distinction between the effect of a judgment passed by a
court/judicial authority and that of a quasi-judicial authority.
Whereas a quasi-judicial authority, it was held, will become functus
officio only when its order is pronounced or published/notified or
communicated (put in the course of transmission) to the party
concerned, a Judge was held to become functus officio when he
pronounces, signs and dates the judgment, subject to Section 152
and the power of review. The distinction between the two was being
examined in the said judgment. Thus, the said ratio does not aid
the appellant in the present appeal in any manner whatsoever.
83. There cannot be any doubt that a Judge becomes functus officio
when he pronounces his judgment in open court. However, such
proposition is irrelevant in the present context, since in the instant
case, the learned Single Judge did not modify or seek to review his
1
State Bank of India and Others vs. S.N.Goyal reported at (2008) 8 SCC
92
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own judgment dated September 24, 2025 in any manner
whatsoever. Rather, by the orders impugned in the present appeal,
full and complete effect was sought to be given to the directions
passed in the order dated September 24, 2025, in connection with
EC No. 255 of 2022. Although it was mentioned in the said
judgment that the execution case was thereby “allowed”, the said
disposal was merely nominal, since further directions were given to
execute the draft decree.
84. As held earlier, an execution case is only concluded when the award
sought to be executed is completely satisfied. In the case of an
award of specific performance of a contract, such satisfaction occurs
only upon the draft deed being finalized, executed and registered.
All steps in between, as contemplated in Order XXI Rule 34, CPC,
come within the specific domain of the executing court. It is
precisely such provision which was exercised by way of the
impugned orders passed by the learned Single Judge. Hence, the
argument of the appellant is contradictory on such count – on the
one hand contending that the executing court became functus officio
and on the other, that the provisions of Order XXI Rule 34(3) were
not complied with despite the executing court being duty-bound in
law to do so.
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85. In Mallikarjuna Rao (supra)2, the Full Bench of this Court was
considering the procedure for announcing judgments in criminal
trials. While doing so, it was held that once a judgment or order is
pronounced or assumes its final form, the jurisdiction of the court
lapses over that particular judgment or order.
86. There cannot be any quarrel with such proposition. However, the
said ratio is not applicable here, since the executing court itself
directed in its order dated September 24, 2025 for the draft deed to
be executed, in default of the award debtor doing so. As the award
debtor chose not to execute the decree in terms of the award,
further steps were required to be taken in furtherance of the order
dated September 24, 2025 itself, to take the award to its logical
fruition. By the orders impugned in the present appeal, the
executing court did not tinker with its judgment dated September
24, 2025; rather, the impugned orders were passed in furtherance
and to give effect to the directions incorporated in the said
judgment.
87. Hence, the said decision also does not have any applicability in the
present context.
88. In Mahanth Ram (supra)3, the Hon’ble Supreme Court was dealing
with a situation where enlargement of time was held to be
2
Mallikarjuna Rao & Others vs. State of West Bengal reported at (2016)
SCC OnLine Cal 3952
3
Mahanth Ram Das v. Ganga Das reported at AIR 1961 SC 882
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procedural in nature. In Debabrata Maiti (supra)4 as well, a co-
ordinate Bench of this Court held in similar line. However, the said
judgments are not directly applicable in the present case, since we
are of the opinion that the orders impugned were not merely
restricted to extension of time but also comprised of an exercise of
the executing court’s powers under Order XXI Rule 34 of the CPC.
89. Even otherwise, the reports filed by the Registrar before the learned
Single Judge, which have also been placed before us, contained all
the objections raised by the award debtor/appellant and the
observations of the Registrar on those.
90. It is a cardinal principle of evidence that official and judicial acts are
presumed to have been done properly unless rebutted. All the
orders impugned before us indicate that the reports were not only
placed by the learned Single Judge but prompted the learned Judge
to issue further directions with a view to alter the draft which was
initially submitted. As discussed above, under Rule 34(3) of Order
XXI, it is not required for the court to adjudicate or pass reasoned
orders on the objections raised by the award debtor to the draft but
only, upon consideration of such objections, to pass necessary
orders approving or altering the draft. It is evident why the provision
is such, since the said provision itself restricts the objections to the
draft and the draft alone. Substantive objections to the very
execution or executability of the award, on a larger canvass, could
4
Debabrata Maiti v. The Mallabhum Gramin Bank & Ors reported at
(2008) 3 Cal LP 85
29
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only have been raised within the contemplation of Section 47, CPC
before the regular executing court, acting in such capacity, by way
of an independent application under Section 47, CPC, and not
before the learned Judge in Chambers operating within the
parameters of Order XXI Rule 34(3), CPC.
91. Even the award debtor/appellant proceeded on such footing, since,
notably, none of the objections were filed before the Judge
concerned but were taken out before the Registrar. Nothing
prevented the appellant to raise the objections before the learned
Judge himself and/or to point out to the learned Judge that their
objections were not being addressed properly by the Registrar.
However, the appellant was conspicuous by its absence on each of
the occasions when the detailed reports containing the objections
and the findings of the Registrar thereon were placed before the
learned Single Judge and the learned Single Judge passed orders
altering the draft, in due deference to the provisions of Order XXI
Rule 34(3), CPC.
92. The other facet of challenge is that the map, as contained in Exhibit
“C-22” of the arbitral proceeding, was directed to be compared with
the draft deed by the learned Single Judge.
93. A mere perusal of the award would clearly indicate the reason for
the learned Single Judge doing so. In the ordering portion of the
award, the learned Arbitrator allowed the respondent’s prayer for
specific performance of the Nomination Agreement by directing the
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Claimant (present appellant) to execute the sale deed in favour of
the respondent within two months from the date of receipt of the
award “in respect of the property mentioned in the First Schedule
(Schedule Property) as mentioned in the Nomination Agreement”.
The award, immediately thereafter, mentioned the specific schedule
of the Nomination Agreement, which also contained a reference to
the Plan annexed thereto. Thus, the ordering portion of the award
was inextricably linked with the Plan. However, the Plan was
actually not there with the Nomination Agreement. In earlier
portions of the award, which was before the learned Single Judge,
who had also decided the Section 34 application earlier, there was
clear reference to the rights which were intended to be conveyed by
the deed which was directed to be executed.
94. For example, the award mentioned that “title here means the title of
the Claimant in the property. In other words, even if the Claimant
has acquired no title over the property by virtue of its decree against
Express Group, in the counter-claim, the respondent would not
raise such question in terms of its undertaking”.
95. Again, the award observed that “this Tribunal, in order to give effect
to the intention of the parties as appearing in the Nomination
Clause will direct the Claimant to reconvey whatever right it has
obtained by the deed in execution of the decree for sale against the
Express Group in favour of the respondent …”.
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96. It was further observed by the Arbitral Tribunal that from the terms
and conditions mentioned in the Nomination Agreement, there was
no trace of doubt that the object of the parties was to convey the
right of the Claimant in the subject-matter of the agreement by
virtue of the right accrued in its favour from the decree of sale
passed by the Hon’ble High Court of Calcutta against the Express
Group.
97. Read in such context, the conveyance was to be executed in favour
of the award holder/respondent in terms of the award in spite of
whatever right the Claimant/award debtor had obtained by the deed
in execution of the decree for sale against the Express Group. Thus,
in order to give complete effect to the award in letter and spirit, it
was necessary for the draft deed to be compared with the map and
the schedule, not only with the award but with Exhibit “C-22” as
well, which was the map annexed to the original conveyance deed
dated July 8, 2010.
98. Thus, the powers so exercised by the learned Single Judge were well
within the periphery of the power vested in him by Order XXI Rule
34(3) of the CPC.
99. The ministerial tasks of comparison between the maps, the schedule
and the draft deed as well as other ancillary procedure were left to
the Registrar. However, the learned Single Judge did not shirk his
duty but duly directed the reports of the Registrar, containing the
altered draft deed and including reports as to the comparisons with
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the map, etc., to be placed before the court on every occasion. Only
after perusal of the reports placed before the Court, as evident from
the impugned orders, the orders in respect of alteration of the draft
were passed by the Court from time to time.
100. Finally, upon such draft being finalized, it was directed to be
executed and registered before the Registrar of Assurances,
Hyderabad in terms of the award.
101. Hence, none of the arguments of the appellant are tenable in the eye
of law.
102. Insofar as the alleged non-payment of the balance consideration by
the respondent is concerned, such objection was never raised before
the executing court at all. In any event, there is nothing on record
to indicate that the award debtor/appellant complied with its part of
the award by furnishing its bank account and/or paying the cost
along with interest as directed in the award. Having thus flouted
the award in every respect and not having done its part in terms of
the award, the mere absence of a direction of prior payment of the
balance consideration by the respondent, which might very well
have exceeded the dues of the respondent from the appellant,
cannot be said to vitiate the impugned orders.
103. In any event, the respondent has shown is bona fides by offering the
balance consideration to be deposited, subject to the appellant
depositing its dues in terms of the award, which is perfectly
justified.
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104. In view of the above, there is no cogent ground for interference with
the impugned orders.
105. Accordingly, APOT No. 01 of 2026 is dismissed on contest without
any order as to costs, thereby affirming the impugned orders dated
December 10, 2025 and December 19, 2025 (as modified by the
order dated December 22, 2025) passed in connection with EC No.
255 of 2022.
106. Urgent certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Supratim Bhattacharya, J.)
