Tarlok Singh Chauhan, J.@mdashBy medium of this application under Section 151 read with Section 144 C.P.C., the applicant/judgment debtor has sought refund of the excess amount deposited by him with a further direction to recall the order dated 24.2.2015 (mentioned as 23.2.2015), whereby this Court had directed to release of the amount deposited by the judgment debtor in favour of the decree holder.
2. It is alleged by the judgment debtor that as against the amount of Rs. 2,84,25,372/- along with proportionate interest, he has deposited a sum of Rs. 4,68,25,228/-, whereas the total amount due to the Decree Holder as per the award is as follows:-
3. It is in this background that the present application has been preferred for claiming refund of the excess amount.
4. The application has been vehemently opposed by the Decree Holders by filing reply, wherein preliminary objections have been taken to the effect that the application is not maintainable, as the same seeks to raise issues, which stand already decided or are deemed to be decided and therefore, cannot again be permitted to be raised. It has been alleged that these orders have obtained finality and operate as res judicata between the parties. In support of their allegations, the Decree Holders have made the following averments:-
"(a) That the Judgment Debtor/applicant was served in the execution petition as well as in the application for attachment of his properties being OMP No. 262 of 2013. Both in the execution petition and OMP No. 262 of 2013, details of the amounts due from the Judgment Debtor to the Decree Holders were clearly spelt out item-wise alongwith the interest claimed separately. Therefore, the total amount due was also indicated. The Judgment Debtor appeared in the present proceedings on 10.7.2013. He specifically prayed for and was granted time to file objections to the execution petition as well as OMP No. 262 of 2013.
(b) That on 2.8.2013 the judgment debtor was again granted time to file objections to execution petition and reply to OMP No. 262 of 2013 subject to costs of Rs. 2000/- (c) On 27.8.2013, this Hon''ble Court closed the right of the Judgment Debtor to file objections to the execution petition. It also closed his right to file a reply to OMP No. 262 of 2013.
(d) On 27.8.2013, the Court further proceeded to order the Decree Holder to take necessary steps for the attachment of the property, the means of which were detailed in the said order.
(e) The aforesaid order is an order under Order 21 Rule 22 and is dated 27.8.2013, that is a decree unto itself. One stage of the execution proceedings culminated with the said order, which is to be treated as a decree. Thereafter, the Court proceeded to the next stage by passing an order under Order 21 Rule 23 CPC. Once the Judgment Debtor, with open eyes failed to file any objections having appeared pursuant to the notice issued to him, and the Court closed his right to do so, in law, it will be deemed that while ordering the attachment of his property, after closing his right to file objections, this Court had adjudicated and determined the amount to be recovered from the Judgment Debtor. J.D. had as such agreed with the calculations put forth by the Decree Holders, both in the execution petition as also in the application. The said order dated 27.8.2013, is a decree unto itself and if the Judgment Debtor was not satisfied with the same, the only course left open to him was to file an appeal against the same. Since no appeal was filed, and the said decree dated 27.8.2013 has attained finality. The Judgment Debtor is barred in law from filing the present application in order to question the amount that is claimed by the Decree Holders and which has not only been deposited by the Judgment Debtor, but his no objection to the release of the amount in favour of the Decree Holder stands recorded in Order dated 24.2.2015 by this Court. The Decree Holders are supported by the law as laid down by the Hon''ble Apex Court, the Full Bench and Division Benches of various High Courts, which shall be furnished to this Hon''ble Court in the form of a compilation at the time of arguments.
(f) That the application is also not maintainable for the reason that after the property was attached for recovery of the amount claimed and detailed in the execution petition (to which no objections have been filed), this Hon''ble Court proceeded to pass an order dated 25.3.2014, thereby allowing OMP No. 69 of 2014 and ordering the sale of the attached property of the Judgment Debtor at Dharamshala to be sold by way of public auction to recover the amount detailed and indicated in the execution petition. The Judgment Debtor did not file any objections to the said application nor did he challenge the said order in appeal. The same has also attained finality.
(g) That thereafter the Judgment Debtor filed an OMP No. 196 of 2014, under Section 151 CPC for recalling the order. In the said application, the Judgment Debtor has admitted in para-4 thereof the amount claimed in the execution petition in the following words: "The learned Arbitrator has come to the conclusion that the non-applicants/judgment holders are entitled for an amount of Rs. 3,82,06,988/- (this is amount detailed and claimed in the Execution Petition). At no stage, the Judgment Debtor questioned the correctness of this amount that had been claimed by the Decree Holders. The said application was also dismissed by this Hon''ble Court vide its order dated 9.7.2014. The appeal filed against the Order was dismissed as withdrawn.
(h) That thereafter, the proclamation for sale was ordered to be drawn up and was drawn up and, at that stage also, (although, in law he could not have raised any objection), the Judgment Debtor failed to raise any objections regarding the correctness of the amount for which the decree was being executed.
(i) That the Judgment Debtor then filed an application being OMP No. 457 of 2014. He raised several objections therein, but he did not question the amount claimed in the execution petition."
5. It is thereafter averred that this Court has become functus officio after passing of order dated 24.2.2015 and the application, therefore, deserves to be dismissed. It is also contended that the Arbitrator has specifically held that the Judgment Debtor had withdrawn an amount of Rs. 67,44,947/- before the dissolution of the Firm and therefore, this amount had infact been awarded in favour of the Decree Holder.
I have heard the learned counsel for the parties and have gone through the record of the case.
6. The Decree Holder in the application under Order 21 Rule 1 C.P.C. has claimed the following amounts:-
7. Therefore, the main question which arises for determination is as to whether the Decree Holder is entitled to the amount of Rs. 63,11,334/- along with the interest thereon.
8. The relevant portion of the award passed by the learned Arbitrator reads thus:-
"From the close scrutiny of this post-dissolution accounts maintained in different Banks, a casual chart of amounts transferred from SHR Account to and in the name of Shri Vijay Khann''s personal account referred to below read with the record in the form of Compilation of Provisional Income and Expenditure Account of SHR, it is evident that the Respondent has grained huge profits by carrying on the business by using the partnership property for his personal gains since the date of dissolution till date. The Hotel business has monetarily gained grounds day by day and Respondent is having thriving business as is apparent from the Statement of amount(s) withdrawn by him (Respondent) from the account of SHR with ICICI Branch Office Dharamshala for his personal use after dissolution of partnership firm i.e. 26.5.2008 and other Banks. From the CHART prepared by this forum based on the entries of the accounts of different Bank read with Provisional Income and Expenditure Account of SHR and entries detailed therein CHART Annexure MARK "Y" Respondent has withdrawn an amount of Rs. 67,44,947/- before dissolution and an amount of Rs. 63,11,334 after dissolution. It is to be seen that the cash withdrawals by Respondent and by his family, ATM withdrawals, Car Loan payments when compared with the Provisional Income and Expenditure Account of M/s. SHR as compiled by the above-said Chartered Accountants does not find mention therein as much as no such personal Ledger Account of Respondent Vijay Khanna has been opened under any Head as are detailed in any of the said Compilation of Provisional Income and Expenditure Account(s) of aforesaid SHR. As such it is not possible to conclude the financial status of the parties to the instant lis even for the purposes of settlement of accounts in the winding up process of the instant case from the above said Provisional Income and Expenditure Account of SHR as produced by Respondent without the concerned papers indicated for the purpose of withdrawal, payment or expenditure so incurred. Huge amount towards legal and professional charges have been indicated in the said compiled accounts but other withdrawals through ATM etc do not find place therein. Therefore, it is not possible to seek help and rely upon the entries of the said Compilation of Provisional Income and Expenditure Account of M/s. SHR aforesaid after dissolution of the partnership firm on 26.3.2008.
Even otherwise Respondent from the very inception of receipt of notice adopted a stubborn attitude to defy the claim of the Claimants. Rather the Respondent filed a Counter Claim on untenable, contradictory and inconsistent pleas which have been proved to be not only destructive of each other but on false grounds as well.
Admittedly this is a Commercial Industry/business. Thus this forum deems it just and proper to adopt the procedure of awarding interest from the date of dissolution in accordance with sub-section 7(a) and (b) of the Arbitration and Conciliation Act, 1996 on the whole of the amount found to be due as per the terms and conditions of the partnership deed @ 12% per annum. Thus the total payable amount (as of today) by the Respondent to the Claimants comes to
In case the amount found due is not paid within one month from the date of receipt of the copy of the duly signed award, the Respondent shall be further bound to pay interest in accordance with Section 17(7)(b) of the Act 26 of 1996 i.e. @ 18% per annum on the amount of Rs. 1,84,58,030/- till the date of its payment."
9. Now a bare perusal of the award would show that nowhere has the learned Arbitrator awarded a sum of Rs. 63,11,334/- in favour of the Decree Holders.
10. However, the learned Counsel for the Decree Holder has vehemently argued that not only at any stage of proceeding did the Judgment Debtor ever file any objections against the decree, but he has also not objected at the time when notice of attachment of his property had been issued. He did not object even when his property was attached and thereafter when attached property was in fact ordered to be sold. He further argued that the Judgment Debtor while filing OMP No. 196 of 2014 for recalling of order, had clearly admitted in para 4 regarding the amount claimed in the execution in the following words:
"4. That after sometime partnership was dissolved and decree holder/non-applicant has filed a case and matter was referred to Ld. Single Arbitrator. The Ld. Arbitrator has come to the conclusion that the non applicants/judgment holders are entitled for an amount of Rs. 3,82,06,988/-"
11. Learned counsel for the Decree Holders has argued that if after receiving notice of the execution application under Rule 22 of Order 21 C.P.C., the Judgment Debtor does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court is bound to order that the decree be executed. Such an order passed by the Court is not automatic, but involves an implied adjudication that the Decree Holder has a right to execute the decree and the Judgment Debtor is liable to satisfy the decree. He further contended that the principle of constructive res judicata is applicable to the execution proceedings, where in response to the notice under Order 21 Rule 22 or Order 21 Rule 23 sub Rule 1 and 2 of the Civil Procedure Code, the Judgment Debtor either does not appear in the Court or having appeared does not object to the execution on any grounds and the Court thereupon orders that the execution to proceed then by application of explanation IV to Section 11 of the Civil Procedure Code, it would be deemed that the plea as sought to be raised now had been raised and rejected and consequently the judgment debtor would not be permitted at a later stage of the same execution proceedings to again raise the plea.
12. In support of his contention, the learned counsel for the Decree Holder has relied upon Full Bench decision of Orissa High Court in Rajkishore Mohanty and another Vs. Kangali Moharana and others AIR (59) 1972 Orissa 119, a Division Bench Judgment of Rajasthan High Court in
13. There can be no quarrel with the proposition of law as canvassed by learned counsel for the Decree Holder more particularly in teeth of the judgment passed by Hon''ble Supreme Court in Barkat Ali''s case (supra). The relevant portion whereof reads as under:-
"9. Order 21 Rule 22 CPC culminates in end of one stage before attachment of the property can take place in furtherance of execution of decree. The proceedings under Order 21 Rule 23 can only be taken if the executing court either finds that after issuing notice under Order 21 Rule 21 (sic Rule 22) the judgment-debtor has not raised any objection or if such objection has been raised, the same has been decided by the executing court. Sub-rule (1) as well as sub-rule (2) under Order 21 Rule 22, operate simultaneously in the same field. Sub-rule (1) operates when no objection is filed. Then the court proceeds and clears the way for going to the next stage of the proceedings, namely, attachment of the property and if the court finds objections on record then it decides the objections in the first instance and thereafter clears the way for taking up the matter for attachment of the property if the objections have been overruled."
14. But question which still remains to be adjudicated is as to whether the Decree Holders are entitled to the amount of Rs. 63,11,334 along with interest, despite the fact that, this amount has not been awarded in their favour by the learned Arbitrator.
15. It cannot be disputed that the provision of Order 21 makes reference to a ''decree''. Would ''decree'' in this context mean the award passed by the learned Arbitrator or would it mean the amount claimed unilaterally by the Decree Holders in their application preferred under Order 21 Rule 1 C.P.C.
16. Indisputably it is the award of the Arbitrator, which is required to be enforced, as if it was a decree. It is borne in mind that the executing Court is duty bound to give effect to the decree in its substance and ought not to pass an order rendering in the judgment and decree as futile one. It is a trite that the executing Court must take the decree according to its tenor and it cannot go beyond the decree. The executing Court cannot sit in appeal over the decree passed by the Court nor is it entitled to pass an order, which will virtually result in effecting the rights of the parties already settled under the decree. The executing Court can neither add nor subtract anything in the decree.
17. If that be so, then the excess amount deposited by the Judgment Debtor, at best can be termed to be a deposit made under a mistake.
Section 72 of the Contract Act provides:-
"72. Liberty of person to whom money is paid, or thing delivered, by mistake or under coercion.---A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it."
18. The Hon''ble Supreme Court in
19. Confronted with this position, the learned counsel for the Decree Holder would still argue that the principle of constructive res judicata would apply to both the factual and legal aspects of the matter and therefore, Judgment Debtor cannot raise this plea at this stage.
20. The learned counsel for the Decree Holder would probably have been right in his submission, in case there would have been some ambiguity in the award passed by the learned Arbitrator or alternatively if the Decree Holders would be in a position to convince the Court that the amount now claimed by the Judgment Debtor had in fact been awarded to the Decree Holders. That not being so, this Court cannot shut its eyes or else the same would amount to Decree Holder being unduly enriched.
21. The principle of unjust enrichment proceeds on the basis that it would be unjust to allow one person to retain a benefit received at the expense of another person. This was so held by the Hon''ble Supreme Court in
"98. The principle of unjust enrichment proceeds on the basis that it would be unjust to allow one person to retain a benefit received at the expense of another person. It provides the theoretical foundation for the law governing restitution. The principle has, however, its critics as well as its supporters. In the words of Lord Diplok: "�there is no general doctrine of unjust enrichment in English law. What it does is to provide specific remedies in particular cases of what might be classed as unjust enrichment in a legal system that is based upon civil law." (See: Orakpo V. Manson Investments Ltd. 1978 AC, 104). In The Law of Restitution by Goff and Jones, it has, however, been stated "that the case-law is now sufficiently mature for the courts to recognize a generalized right of restitution" (3rd Edn., P. 15). In Chitty on Contracts, 26th Edn., Vol. I, p. 1313, para 2037, it has been stated that "the principle of unjust enrichment is not yet clearly established in English law". The learned editors have, however, expressed the view:
"Even if the law has not yet developed to that extent, it does not follow from the absence of a general doctrine of unjust enrichment that the specific remedies provided are not justifiable by reference to the principle of unjust enrichment even if they were originally found without primary reference to it." (pp. 1313-1314, para 2037)."
The issue regarding undue enrichment thereafter came up before the Hon''ble Supreme Court in Indian
"UNJUST ENRICHMENT
151. Unjust enrichment has been defined as:
"Unjust enrichment.---A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense."
See Black''s Law Dictionary, 8th Edition (Bryan A. Garner) at page 1573. A claim for unjust enrichment arises where there has been an "unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience."
152. "Unjust enrichment" has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.
153. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash, 732 A.2d 217, 232-33 (Delaware. 1999). USA)
154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of Fibrosa v. Fairbairn, [1942] 2 All ER 122, Lord Wright stated the principle thus :
"....Any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution."
155. Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751 as under:
"..... It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular frame-work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires."
156. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment.
Restitution and compound interest
157. American Jurisprudence 2d. Volume 66 Am Jur 2d defined Restitution as follows:
"The word ''restitution'' was used in the earlier common law to denote the return or restoration of a specific thing or condition. In modern legal usage, its meaning has frequently been extended to include not only the restoration or giving back of something to its rightful owner, but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another. As a general principle, the obligation to do justice rests upon all persons, natural and artificial; if one obtains the money or property of others without authority, the law, independently of express contract, will compel restitution or compensation."
158. While Section ('') 3 (unjust enrichment) reads as under:
"The phrase "unjust enrichment" is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly."
159. Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental principle thereof. They are usually linked together, and restitution is frequently based upon the theory of unjust enrichment. However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.
160. While the term ''restitution'' was considered by the Supreme Court in
"31. ....''unjust enrichment'' means retention of a benefit by a person that is unjust or inequitable. ''Unjust enrichment'' occurs when a person retains money or benefits which in justice, equity and good conscience, belong to someone else."
161. The terms ''unjust enrichment'' and ''restitution'' are like the two shades of green - one leaning towards yellow and the other towards blue. With restitution, so long as the deprivation of the other has not been fully compensated for, injustice to that extent remains. Which label is appropriate under which circumstances would depend on the facts of the particular case before the court. The courts have wide powers to grant restitution, and more so where it relates to misuse or non-compliance with court orders.
162. We may add that restitution and unjust enrichment, along with an overlap, have to be viewed with reference to the two stages, i.e., pre-suit and post-suit. In the former case, it becomes a substantive law (or common law) right that the court will consider; but in the latter case, when the parties are before the court and any act/omission, or simply passage of time, results in deprivation of one, or unjust enrichment of the other, the jurisdiction of the court to levelise and do justice is independent and must be readily wielded, otherwise it will be allowing the Court''s own process, along with time delay, to do injustice.
163. For this second stage (post-suit), the need for restitution in relation to court proceedings, gives full jurisdiction to the court, to pass appropriate orders that levelise. Only the court has to levelise and not go further into the realm of penalty which will be a separate area for consideration altogether.
164. This view of law as propounded by the author Graham Virgo in his celebrated book on "The Principle of Law of Restitution" has been accepted by a later decision of the House of Lords (now the UK Supreme Court) reported as 136 Sempra Metals Ltd. (formerly Metallgesellschaft Limited) v. Her Majesty''s Commissioners of Inland Revenue and Another [2007] UKHL 34 : [2007] 3 WLR 354 : [2008] 1 AC 561 : [2007] All ER (D) 294.
165. In similar strain, across the Atlantic Ocean, a nine judge Bench of the Supreme Court of Canada in Bank of America Canada vs. Mutual Trust Co. [2002] 2 SCR 601 : 2002 SCC 43 (both Canadian Reports) took the view:
"There seems in principle no reason why compound interest should not be awarded. Had prompt recompense been made at the date of the wrong the plaintiff should have had a capital sum to invest; the plaintiff would have received interest on it at regular intervals and would have invested those sums also. By the same token the defendant will have had the benefit of compound interest. Although not historically available, compound interest is well suited to compensate a plaintiff for the interval between when damages initially arise and when they are finally paid."
This view seems to be correct and in consonance with the principles of equity and justice.
166. Another way of looking at it is suppose the judgment-debtor had borrowed the money from the nationalised bank as a clean loan and paid the money into this court. What would be the bank''s demand.
167. In other words, if payment of an amount equivalent of what the ledger account in the nationalised bank on a clean load would have shown as a debit balance today is not paid and something less than that is paid, that differential or shortfall is what there has been: (1) failure to restitute; (2) unfair gain by the non-complier; and (3) provided the incentive to obstruct or delay payment. Unless this differential is paid, justice has not been done to the creditor. It only encourages non-compliance and litigation. Even if no benefit had been retained or availed even then, to do justice, the debtor must pay the money. In other words, it is this is not only disgorging all the benefits but making the creditor whole i.e. ordering restitution in full and not dependent on what he might have made or benefited is what justice requires.
21. In so far as the contention raised by the Decree Holder that this Court has become functus officio is concerned, it needs to be noticed that no final decision has been taken in the Execution Petition and the same is still pending. It is only when a Court decides a question brought before it finally that it becomes functus officio and cannot review its own decision. In observing so, this Court draws support from the following observations of the Hon''ble Supreme Court in
"25. The learned counsel for respondent contended that the Appointing Authority became functus officio once he passed the order dated 18.1.1995 agreeing with the penalty proposed by the Disciplinary Authority and cannot thereafter revise/review/modify the said order. Reliance was placed on the English decision VGM Holdings Ltd., Re (1941) 3 All. ER 417 wherein it was held that once a Judge has made an order which has been passed and entered, he becomes functus officio and cannot thereafter vary the terms of his order and only a higher court, tribunal can vary it. What is significant is that decision does not say that the Judge becomes functus officio when he passes the order, but only when the order passed is ''entered''. The term ''entering judgment'' in English Law refers to the procedure in civil courts in which a judgment is formally recorded by court after it has been given.
26. It is true that once an Authority exercising quasi judicial power, takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review. But the question is as to at what stage, an Authority becomes functus officio in regard to an order made by him. P. Ramanatha Aiyar''s Advance Law Lexicon (3rd Edition, Vol. 2 pp. 1946-47) gives the following illustrative definition of the term ''functus officio'':
"Thus a Judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision."
27. Black''s Law Dictionary (Sixth Edition Page 673) gives its meaning as follows:
"Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore, of no further force or authority".
28. We may first refer to the position with reference to civil courts. Order XX of Code of Civil Procedure deals with judgment and decree. Rule 1 explains when a judgment is pronounced. Sub-rule (1) provides that the Court, after the case has been heard, shall pronounce judgment in an open court either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-rule (3) provides that the judgment may be pronounced by dictation in an open court to a shorthand writer (if the Judge is specially empowered in this behalf). The proviso thereto provides that where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced shall, after making such corrections as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record. Rule 3 provides that the judgment shall be dated and signed by the Judge in open court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided by section 152 or on review. Thus where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open court, that itself amounts to pronouncement. But even after such pronouncement by open court dictation, the Judge can make corrections before signing and dating the judgment. Therefore, a Judge becomes functus officio when he pronounces, signs and dates the judgment (subject to section 152 and power of review). The position is different with reference to quasi judicial authorities. While some quasi judicial tribunals fix a day for pronouncement and pronounce their orders on the day fixed, many quasi judicial authorities do not pronounce their orders. Some publish or notify their orders. Some prepare and sign the orders and communicate the same to the party concerned. A quasi judicial authority 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. When an order is made in an office noting in a file but is not pronounced, published or communicated, nothing prevents the Authority from correcting it or altering it for valid reasons. But once the order is pronounced or published or notified or communicated, the Authority will become functus officio. The order dated 18.1.1995 made on an office note, was neither pronounced, nor published/notified nor communicated. Therefore, it cannot be said that the Appointing Authority became functus officio when he signed the note on dated 18.1.1995."
22. In view of the aforesaid discussion, it can safely be concluded that the Decree Holders are only entitled to what has been awarded to them in terms of the award of the learned Arbitrator and this Court while executing the award cannot go behind the award by adding or subtracting anything from it. The Judgment Debtor having deposited the excess amount under mistake is entitled to refund of the same or else the same would amount to undue enrichment of the Decree Holder. Therefore, the Decree Holder is held entitled only to an amount of Rs. 3,70,49770.80 and the remaining amount is required to be refunded to the Judgment Debtor and accordingly the order dated 24.2.2015 directing release of the amount in favour of the Decree Holders is modified to that extent.
In view of the aforesaid discussion, the present application is allowed and the Judgment Debtor is held entitled to excess amount deposited by him.
