ASHIM KUMAR BANERJEE.J - (1.) SMT . Nilima Ghosh had five sons and three daughters. All five sons are alive and litigating before the Court of Law. Nilima owned and possessed premises no.48, Hindusthan Park being the dwelling house of the Ghosh family. Nilima made a Will bequeathing the said property to her five sons Dilip, Ashok, Amal, Ashim and Anjan. She appointed her nephews Dr. Bhaskar Roy Showdhury, former Vice Chancellor, Calcutta University and Shri Bhupendranath Dey an advocate of this Court as executors. Under her Will the property would devolve upon her five sons in equal shares. The sons would be obliged to preserve the said property and in case they were not able to do so and commercially exploited the property, her three daughters would get one flat each. In case of dispute between the brothers the dispute would be resolved by their elder sister Mayarani Dutta and one Kamal Kumar Sen, an eminent engineer, a close relation of the Ghosh family to act as arbitrator. The dispute arose when brothers fell out having three on the one side and two on the other.
(2.) ULTIMATELY , the fourth one crossed the floor. Presently, Dilip, Amal, Anjan and Asok being on the one side, Ashim became the villain of the peace. Mayarani and Kamal Kumar acted as arbitrator and ultimately published their award appearing at page 1to 5. Ashim and Ashok did not accept the award. Hence, the majority group placed it for execution. Ultimately, Ashok crossed the floor leaving Ashim alone. The executing Court upheld the objection of Ashim, the award being an unregistered one, could not be enforced. Hence, this appeal by the majority groups. Pertinent to note, earlier Ashim applied under Section 47 of the Code of Civil Procedure. The learned Court below observed, having not challenged the award the issue could not be raised under Section 47. Ashim approached this Court. The learned single Judge dismissed the Revisional application after holding, the plea taken by the Court below although not sustainable, the merits would not deserve any interference. The order of learned single Judge being relevant herein is quoted below :- "The petitioner is aggrieved by the order passed by the learned Court below by which an application under Section 47 of the Code of Civil Procedure at the time of implementation of an arbitral award was dismissed merely on the ground that the provisions of Section 47 of the Code of Civil Procedure could not be invoked when an award was put into implementation. The learned Court below has not discussed why it felt that Section 47 was not available to a judgment-debtor when an award was put under implementation merely because he had not assailed the award under Section 34 of the Arbitration and Conciliation Act, 1996. The legal question decided by the learned Court below is thus left open for future adjudication. It, however, appears that the application under Section 47 of the Code of Civil Procedure was otherwise unmeritorious and the order should be treated as an order passed on merits and not on the ground that the application under Section 47 was not maintainable.
(3.) THE effect of this order is that the legal question answered in the order impugned is reversed but the effect of the order impugned is maintained. ";