- (1.) This execution application has been taken out by the deemed decree- holder. Mr. Roychoudhury appearing for the judgment-debtor has raised a preliminary question as to the maintainability and/or continuation of the execution application for the following facts which are admitted.
(2.) The learned sole Arbitrator made and published an Award on 24th April, 2004. Application under Section 34 co impugn the Award within the parameter of the aforesaid section was made on 7/8th July, 2004.
(3.) The application for setting aside of the Award, as above, was dismissed for default on 14th June, 2005. However, no application was made for restoration nor any order was passed for restoration until 8th August, 2005. During this period there has been no application for restoration nor any order of restoration was passed, but the present execution application has been levied on 22nd June, 2005, and from time to time, namely, on 7th July, 2005, 14th July, 2005 and 21st July, 2005 this execution application was heard and at different stages various interim orders were passed by the executing Court including giving direction for filing affidavit-in-opposition to this execution application. Indeed, pursuant to the aforesaid order the affidavit-in- opposition has been filed. Thereafter by an order dated 8th August, 2005, the application for setting aside of the Award was restored by the learned regular Arbitration Court. Now the question is as to whether the order of restoration gets the retrospective effect and thereby nullifies the subsequent proceedings taken by the decree holder or not. In order to ascertain this, Mr. Banerjee, learned senior advocate, submits that under the provision of law at that point of time his client was perfectly within the law to take out this application and he has drawn my attention to Section 36 of the Arbitration and Conciliation Ordinance, 1996. The text is set out hereundcr :- "36. Enforcement:- Where the time for making an application to set aside the arbitral award under Section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if It were a decree of the Court." He submits that initiation of the execution application is perfectly lawful and subsequent order passed by the regular Arbitration Court cannot render the lawful action as being illegal one, unless it is expressly stayed by the appropriate Court. In this context while considering the argument of Mr. Roychoudhury I see the order of restoration of Justice Indira Banerjee, the order reads like this :- "Subject to payment of costs assessed at 60 Gms, to the Registrar, Original Side of this Court, the order dated 14th June, 2005 is recalled. The application being G.A. No. 2425 of 2005 is disposed of. Let the application being A.P. No. 210 of 2004 be placed for hearing as "Adjourned Motion" on 16th August, 2005." In my view, in fitness of the situation after the aforesaid order was passed, the judgment debtor ought to have approached this executing Court and to draw the attention of the fact of restoration of the aforesaid matter and should have obtained a stay of operation of the aforesaid order, Indeed the matter was not heard. Ultimately the application was dismissed on merit on 12th September, 2005.;