- (1.) THIS application under Section 227 of the Constitution of India is directed against order no. 36, dated June 28, 2011 passed by the learned Civil Judge (Senior Division), 5th Court at Alipore in Miscellaneous Case No. 15 of 2011, Title Execution Case No. 2 of 2008. By the said order the learned Trial Judge had dismissed an application under Section 47 of the Code of Civil Procedure filed by the petitioner herein.
(2.) THE case made out by the petitioner is that he had purchased a flat under a co-operative society which is the opposite party no. 2, jointly with his mother, since deceased, from the West Bengal Housing Board. Subsequently, there was an unregistered agreement, dated November 11, 2002 to transfer the said flat to the opposite party no. 1. Pursuant to such agreement the concerned co-operative society accepted the opposite party no. 1 and the opposite party no. 2 had taken possession of the said flat. THE petitioner alleges that the opposite party no. 2 had refused to comply with the terms and conditions of the said agreement and filed a dispute case against the petitioner and his mother, since deceased. According to the petitioner by an Award, dated February 16, 2007 the said dispute was finally disposed of with a direction upon the opposite party no. 1 to pay the balance consideration to the petitioner within a month and it was also directed that upon receipt of such balance consideration the petitioner shall execute and get registered a deed of transfer in favour of the transferee. THE petitioner further alleges that the transferee did not pay the balance consideration and the petitioner also could not carry out his part of the obligation under the Award. Several correspondences were made by the petitioner for effecting necessary follow-up action in terms of the Award but no fruitful purpose was served till the end. THE petitioner says that the Award has thus not been acted upon. The petitioner thereafter filed a dispute case under Section 95 of the West Bengal Co-operative Societies Act, 1983 which was dismissed as not maintainable by a judgement and Award dated February 17, 2010 against which an appeal has been preferred before the West Bengal Co-operative Tribunal and the same is pending. The opposite party no. 1 had thereafter filed an execution case before the trial court for exectuion of the Award, dated February 16, 2007. In the said execution case the petitioner had taken out an application under Section 47 of the Code of Civil Procedure inter alia challenging the maintainability of the said execution case as well as validity of the Award. It had been the contention of the petitioner in the said application that although the case was projected as a dispute between a past and a present member with regard to the terms and conditions of the agreement, dated November 23, 2002 the opposite party no. 1 was neither a past member nor a present member of the co-operative society as the approval of his membership was pending for final consideration which was subject to the final registration of the sale deed. The petitioner has further alleged that as a result of a resolution, dated November 7, 2008 of the Board of Directors of the concerned co-operative society the membership of the opposite party no. 1 stood cancelled and as a result thereof any Award passed in respect thereof is a nullity.
(3.) THE other point of grievance of the petitioner is that the Award involved a set of reciprocal conditions. According to the Award the flat concerned belonged to the opposite party no. 1 provided he paid a balance consideration to the present petitioner and his deceased mother and the petitioner was required to execute and register a deed of transfer only after receiving the balance consideration money. THE opposite party no. 1 had failed to deposit the balance consideration within one month as fixed by the learned Arbitrator in the Award and upon the expiry of the period of one month the opposite party no. 1 became disentitled to get the Award to execute. The learned Trial Judge had held that Section 47 of the Code of Civil Procedure could not be invoked in the instant case and the grounds on which a decree can be challenged in a proceeding of this nature have not been satisfied in the instant case. The learned Judge had also held that the court cannot enter into the validity of a decree unless it was vitiated by want of jurisdiction. The learned Trial Judge thus held that an application under Section 47 was not maintainable and the same was dismissed.;