Rita Chetia and Anr v. Arun Ch Choudhury and 3 Ors

ORDER

25.04.2023

Page No.# 3/4 Heard Mr. S. Banik, learned counsel for the applicant.

¶2The present application was filed seeking leave to challenge the orders dated 18.08.2021 and 02.09.2021, passed by the learned Additional Sessions Judge No. 3 (FTC), Kamrup (M), Guwahati in Money Execution Case No. 147/2014.

¶3The aforesaid orders have also been challenged in CRP(I/O)/105/2023 and same has been dismissed by this Court. In CRP(I/O)/105/2023, objections were raised on the ground that by virtue of principle of merger, the award passed by the learned Arbitral Tribunal dated 15.06.2011 and affirmed by the learned appellate Court in order dated 18.03.2014 merged with the order dated

06.09.2019 passed by this Court in Arb. Appeal No.23/2015, wherein a compromise settlement was made between the claimant and the respondents and was approved by this Court. However, such contention has been rejected by this Court in the aforesaid order passed in CRP(I/O)/105/2023.

¶4The present applicant has assailed the aforesaid orders on a different ground that in view of the Assam Apartments (Construction and Transfer of Ownership) Act, 2006 and in terms of Clause 9 (ii) of the agreement between the builder and the land owner, the claimants being the purchaser of other Flats in the Ashiana Apartment are having right over the Terrace as a common area, though the said terrace was part of the Arbitral award and such award relating to the Terrace has become inexecutable by operation of law.

¶5It is an admitted position that the present petitioner is seeking to raise such issue by way of a connected revision petition without raising such grievance before the Executing Court. Page No.# 4/4

¶6In exercise of revisional power, this Court cannot turn itself into a Court to find out the facts and disputes raised by a stranger to the award in question. In that view of the matter, in considered opinion of this Court, the present petitioner cannot be said to be aggrieved party so far same relates to the order dated 18.08.2021 and 02.09.2021, passed by the learned Additional Sessions Judge No. 3 (FTC), Kamrup (M), Guwahati in Money Execution Case No. 147/2014.

¶7However, they are having rights to agitate their grievances, if any of their rights are being violated by virtue of any award passed between the builder and land owner. They are not remediless before the executing Court but such dispute cannot be a subject matter under a revision petition in the guise of challenging orders dated 18.08.2021 and 02.09.2021.

¶8Therefore, in that view of the matter, this Court finds that no leave is required to be given to the present applicant to assail the order dated

18.08.2021 and 02.09.2021 (supra). Accordingly, I.A. stands dismissed.

JUDGE Comparing Assistant

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