CR No.31/2025 Page No. 1 of 6 Item No.115 Suppl. List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CR No.31/2025 CM No.3726/2025 Caveat No.1468/2025 M/S BARZAM STRUCTURES …PETITIONER(S) Through: - Mr. F. A. Wani, Advocate. Vs. M/S ABHIRAM INFRA PROJECTS & ANR. …RESPONDENT(S) Through: - Mr. Faisal Qadiri, Sr. Advocate, with Mr. Sikandar Hayat Khan, Advocate. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER(0RAL) 02.07.2025 1) Through the medium of present revision petition, the petitioner has challenged order dated 24.05.2025 as also order dated 12.06.2025 passed by Commercial Court, Srinagar. Vide impugned order dated 24.05.2025, the application of the petitioner under Order 21 Rule 58/101 of the Code of Civil Procedure has been dismissed and vide order dated 12.06.2025, the Treasury Officer has been directed to deduct an amount of Rs.7,26,41,058/ from the account of respondent No.2/Award debtor and deposit the same in the account of the court below for further payment to the Award holder/respondent No.1. 2) Issue notice of this petition to respondent No.1 only. CR No.31/2025 Page No. 2 of 6 3) Mr. Sikandar Hayat Khan, Advocate, who is on caveat, waives notice. Caveat shall stand discharged. 4) Heard and considered. 5) It appears that award holder, respondent No.1, filed an execution petition seeking enforcement of arbitration award before the Commercial Court, Srinagar, against the award debtor, respondent No.2 herein. During pendency of the execution proceedings, the petitioner herein filed an application under Order 21 Rule 58/101 of CPC before the Commercial Court for its substitution as a decree holder in the execution petition on the ground that it is entitled to the proceeds of arbitration award in view of the Memorandum of Understanding (MOU) executed by it with the award holder on 23.09.2016. It was also pleaded by the petitioner/applicant before the Commercial Court that it had already filed a suit for specific performance of MOU dated 23.09.2016 before 4th Additional District Judge, Srinagar, which is pending disposal before the said Court. 6) After inviting objections from the award holder, the learned Commercial Court vide impugned order dated 24.05.2025 dismissed the application of the petitioner on the ground that the question whether the petitioner/applicant had executed the works as per the terms of MOU and whether it is entitled to the claims, is a matter of fact, to be CR No.31/2025 Page No. 3 of 6 adjudicated by the Court before whom the petitioner had preferred the suit for specific performance of contract. It was observed by the learned Commercial Court that the matter being subjudice before 4th Additional District Judge, Srinagar, between the petitioner and the award holder, as such, the application cannot be maintained. 7) The petitioner has challenged the impugned orders on the ground that the learned Commercial Court has failed to appreciate the fact that the arbitration had finally been settled by the parties and that the pendency of the suit for specific performance between the petitioner and the award holder could not have come in the way of substituting the petitioner as a decree holder. 8) Learned Senior Counsel appearing for respondent No.1 has raised a preliminary objection to the maintainability of the petition on the ground that the order impugned is appealable in nature, as such, the instant revision petition is not maintainable. 9) There appears to be force in the submission made by the learned Senior Counsel. Admittedly, vide the impugned order dated 24.05.2025, application of the petitioner under Order 21 Rule 58 of CPC has been decided by the learned Commercial Court. Sub-rule (4) of Rule 58 of Order 21 of CR No.31/2025 Page No. 4 of 6 CPC provides that when any claim or objection has been adjudicated upon under the said rule, the order made thereon shall have the same force and shall be subject to the same conditions as to appeal or otherwise if it were a decree. Sub-rule (5) provides that if a claim or an objection is preferred and the Court refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute. 10) Thus, it is clear that an order passed by an Executing Court on an application under Order 21 Rule 58 of CPC is appealable in nature like a decree if it adjudicates upon the claim of the applicant but in case any such application is not entertained at all by the Executing Court, the remedy for the party against whom such an order is made is to file a civil suit. 11) While this Court has serious doubt about the maintainability of the application that was filed by the petitioner for substitution as a decree holder before the learned Commercial Court by invoking the provisions contained in Order 21 Rule 58 of CPC, nonetheless once the petitioner has invoked the power of the Executing Court in terms of the aforesaid provision and once it failed in its said attempt, the only option available with it was to file a civil CR No.31/2025 Page No. 5 of 6 suit for adjudicating upon its claim or at best it could have filed an appeal against the said order. 12) Section 13 of the Commercial Courts Act, makes a judgment or order of a Commercial Court appealable in nature. It further provides that an appeal would lie from such orders passed by a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure. Since an order under Order 21 Rule 58 of CPC has been made appealable as a decree in terms of sub- rule (4) thereof, therefore, such an order passed by a Commercial Court becomes appealable in nature in view of the provisions contained in Section 13 of the Commercial Courts Act. 13) Sub-section (1) of Section 115 of the CPC makes it clear that the power of revision can be exercised by the High Court only in respect of an order against which no appeal lies. In the instant case, the impugned order passed by the learned Commercial Court being appealable in nature, as such, the instant revision petition is not maintainable. 14) There is yet another aspect of the matter which is required to be noticed. The petitioner company has filed the present petition through one Shri Mohammad Sultan Dar, who claims himself to be the Director of the petitioner CR No.31/2025 Page No. 6 of 6 company. Respondent No.1 has placed on record copy of the company information downloaded from the official website of the Ministry of Corporate Affairs which reveals that the name of Mohammad Sultan Dar does not figure in the list of Directors of the petitioner company. The petitioner has not even averred in the petition that Shri Mohammad Sultan Dar has been authorized by the Board of Directors of the company to institute the proceedings on its behalf nor any resolution of the Board of Directors, authorizing Shri Mohammad Sultan Dar to institute the proceedings on behalf of the petitioner company, has been placed on record. Therefore, the very institution of the present petition on behalf of the company by Shri Mohammad Sultan Dar is shrouded in suspicion. Thus, it appears that the instant petition has not been filed by a competent person. On this ground also, the petition deserves to be dismissed. 15) For what has been discussed hereinbefore, the instant petition is held to be not maintainable and is dismissed as such. (Sanjay Dhar) Judge Srinagar, 02.07.2025 “Bhat Altaf” Whether the order is reportable: YES/NO