- (1.) This revisional application is directed against order no.55 dated 15th June, 2009, passed by the learned Additional District Judge, 6th Court at Alipore, in Title Execution Case No.7 of 2008 issuing writ for delivery of possession with direction to Bailiff to execute writ and deliver vacant possession to the decree- holder/opposite party no.1 as per award dated 10th November, 2007. In this revisional application the petitioners prayed for an order for setting aside the initiation of execution proceeding and impugned order being no.55 dated 15th June, 2009, passed by the learned Additional District Judge, 6th Court, Alipore in Title Execution Case No.7 of 2008 by which writ of delivery of possession was issued by the learned Court below with a direction to the Bailiff to execute the writ and deliver the vacant possession to the decree-holder/opposite party no.1 as per award, and all orders passed therein and to restore status quo ante before the order passed by the learned Court below issuing writ of delivery of possession with direction upon the opposite party not to transfer/encumber the property. In support of such prayer in the revisional application the petitioners have made out the following case :- 1) The petitioners became owners and persons in possession having acquired right, title and interest over the land measuring 27 cottahs together with structures thereon lying at being premises no.115/B/1, Netaji Subhas Bose Road under Police Station Regent Park, Calcutta - 40, by way of Registered Sale Deed dated 9th April, 2001 and the same was executed and registered by the judgment-debtors/opposite party nos.2 to 5. 2) After purchase, the petitioners made formal application before the concerned authority of the Kolkata Municipal Corporation for mutation of their names in the Assessment Roll of the Kolkata Municipal Corporation. Upon considering the right, title and interest and possession of the petitioners the authority of Kolkata Municipal Corporation mutated the names of the petitioners as assessees in respect of the property. The petitioners got building plan duly sanctioned by the authority of the Kolkata Municipal Corporation and thereafter, revised plan has also been submitted by them and in accordance with the sanction plan, as also the revised plan, the petitioners constructed multi-storied building over the said property and the building plan was sanctioned in favour of the petitioners some time in 2005. 3) Judgment-debtors/opposite party nos. 2 to 5 as plaintiffs filed a suit being no.76 of 2006 in the Court of the learned 3rd Civil Judge (Senior Division) at Alipore sometime in September, 2006 for a declaration and permanent injunction making therein the petitioners as defendant nos. 1, 2 3 and 4. Opposite party herein was made defendant no.5 in the said suit. The petitioners being defendant nos.1 to 4 in the said suit entered appearance and filed an application under Order VII, Rule 11 (a) (d) of the Civil Procedure Code, praying for rejection of the plaint. 4) After a contested hearing, by order no.21 dated 20th August, 2007 the learned 3rd Civil Judge (Senior Division), Alipore, rejected the said application under Order VII, Rule 11 (a) (d) of the Code of Civil Procedure filed by the petitioners. The said order being no.21 dated 20th August, 2007, passed in Title Suit No.76 of 2006 is also under challenge before this Court in a civil revisional application being C.O. No.3549 of 2007. 5) When this revisional application was initially taken up for consideration, one of the Hon'ble Judges of this Court passed an order on 15th September, 2009, directing that status quo with regard to the possession as well as nature and character of the suit property including transfer and/or creation of any third party interest in respect of the property covered by the award will be maintained as on that date, till the disposal of revisional application. 6) In the revisional application the petitioner has made out a further case that the opposite party no.1 got an award in terms of arbitration agreement in between opposite party no.1 and the opposite party nos. 2 to 5 which is in the nature of declaration only. According to the petitioner, award does not speak for recovery of possession. The revisionists are not parties to the arbitration agreement and, accordingly, such award is not binding upon the revision petitioners. According to the petitioners, the award was put in execution before the learned District Judge at Alipore for recovery of possession and, accordingly, writ of delivery of possession was issued by the order impugned and possession was delivered by dispossessing the revision petitioners. Being aggrieved by such act of the Executing Court, the revision petitioners filed this revisional application under Article 227 of the Constitution of India before this Court on the ground that the order passed in the execution case is without jurisdiction.
(2.) Learned Counsel, Mr. Haradhan Banerjee, appearing for the petitioners, firstly submitted that award does not speak for recovery of possession, it is only for declaration, therefore, order directing issuance of writ for delivery of possession becomes without jurisdiction; secondly, the Executing Court cannot go behind the award and issuance of writ of delivery of possession, is without jurisdiction and nullity; thirdly, Executing Court lacks inherent jurisdiction in executing the award in terms of Section 36 of the Arbitration and Conciliation Act, 1996 as the execution was laid before the learned District Judge and transferred it to the learned Additional District Judge for execution and lastly, the revision petitioners are not parties to the arbitration agreement and, therefore, in terms of Section 35 of the Arbitration and Conciliation Act, 1996, award is not binding upon the revision petitioners. According to Mr. Banerjee, revision petitioners cannot be dispossessed from the flats in question by executing the award.
(3.) Mr. Banerjee, learned Counsel appearing for the petitioner, has referred to the following judgments in support of his case :- Rameshwar Dass Gupta - Vs. - State of U.P. and Anr., reported in (1996) 5 SCC 728. Bhavan Vaja and Ors. - Vs. - Solanki Hanuji Khodaji Mansang and Anr., reported in AIR 1972 SC 1371. Surya Dev Rai - Vs. - Ram Chander Rai and Ors., reported in (2003) 6 SCC 675. Kiran Singh and Ors. - Vs. - Chaman Paswan and Ors., reported in AIR 1954 SC 340. State of West Bengal - Vs. - Bidhu Bhusan Mitra Chowdhury, reported in AIR 1980 Cal 175. Shakuntla Devi - Vs. - Kamla and Ors., reported in (2005) 5 SCC 390. An unreported judgment of the Hon'ble Supreme Court decided on 10th April, 2013 in Civil Appeal Nos.7605-7606 of 2004 in the case of Venkataraja and Ors. - Vs. - Vidyane Doureradjaperumal (D) Thr. Lrs. and Ors. Smt. Laxmi Nagappa Hegde - Vs. - The Karnataka Bank Ltd., Sirsi and Ors., reported in AIR 1988 Karnataka 44. Leela Hotels Limited - Vs. - Housing and Urban Development Corporation Limited, reported in (2012) 1 SCC 302. ;