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Anath Nath Bose Vs. Monmotha Nath Bose and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1939Cal482
AppellantAnath Nath Bose
RespondentMonmotha Nath Bose and ors.
Cases ReferredIn Gladstone Wyllie & Co. v. Joosub Peer Mahomed
Excerpt:
- .....decree all the outstanding matters were referred to arbitration so that there will be no final partition decree but judgment on the award. in my opinion this application is not premature.4. the second point which has been taken on behalf of the respondents is that the award though filed in court is not a decree and reliance is placed on the decision in t.k. gajjar v. jivanchand lallubhai and co. (1911) 35 bom. 196 where the learned chief justice points out that an award, though enforceable as a decree, is not in fact a decree but remains an award though the award is given the same status as a decree for the purpose of enforcement. mr. bannerjee on behalf of the respondents contends that the award is nothing more than a debt on which a suit can be filed, and comes within the.....
Judgment:
ORDER

McNair, J.

1. This is an application for execution of an award dated 27th May 1929 which was filed in this Court on 30th May 1929. The plaintiff seeks to execute the award by attachment and sale of the properties belonging to the opposite parties and set out in the schedule annexed to the tabular statement. By the award it was found that after adjustment of all accounts a sum of Rs. 42,000 was due and owing to the applicant. There was a direction for payment of that sum with interest at 6 per cent, per annum by instalments. The first instalment of Rupees 5000 was to be paid within two years. In 1931 there was a partition suit in which a consent decree was passed on 22nd May. By the preliminary decree the shares of the parties were declared, the applicant being entitled to 1/3rd share, and the opposite parties to the remaining 2/3rd. The arbitrator responsible for the award was appointed Receiver in the suit. There was default in payment of the first instalment payable under the award and on 15th August 1931 the applicant applied to execute the award. The opposite parties at or about the same time applied to set aside the award, and on these two applications a consent order was made dismissing the application to set aside the award, and directing that the application for execution should stand over until the disposal of the partition suit.

2. The respondent contends that the present application is premature on the ground that the partition suit has not yet been dis. posed of. Mr. Deb, the arbitrator, has made four awards by which he has finally partitioned all the immovable properties in the estate except a house at Bankipore between the' plaintiff and the defendants. Ameer Ali J. on 7th March 1938 made an order discharging Mr. Deb as Eeoeiver. Clause 4 of that order provided that the Receiver should make over all the properties allotted' to the different parties. Various adjustments of accounts were ordered and provision was made for handing over certain, documents. Prom para. 8 of the affidavit in reply it appears that all the documents have been handed over except certain documents which have been retained by the Receiver for purpose of passing his final accounts, that all the properties have been transferred, that the adjustment of accounts has been completed; and the house at Bankipore has been purchased by the oppoaite party. Panckridge J. on 8th June 1938 refused an application for the appointment of a Receiver in place of Mr. Deb and said in the course of his judgment:

In view of the terms of Ameer All J.'s order of 7th March, I cannot appoint any Receiver and direct him to take charge of the partitioned property or indeed the other properties. There is no indication that the learned Judge (Ameer Ali J.) intended his order to be provisional and indeed the object of the order, as I read it, is to secure the completion of the partition with the least possible delay.

3. Panckridge, J. further states that he regarded Ameer Ali J.'s order as a final direction as to the way in which the partition was to be effected. It appears from the materials before me now that the partition has in fact been effected and concluded. It is further pointed out by learned Counsel on behalf of the applicant that the consent order of 8th September 1931 which directed that the application for execution should stand over until the disposal of the suit, referred only to the application which was then made for execution, i.e. for the first instalment of Bs. 5000. That matter has already been adjusted, and this application is for execution of the entire sum due. Furthermore, after the preliminary decree all the outstanding matters were referred to arbitration so that there will be no final partition decree but judgment on the award. In my opinion this application is not premature.

4. The second point which has been taken on behalf of the respondents is that the award though filed in Court is not a decree and reliance is placed on the decision in T.K. Gajjar v. Jivanchand Lallubhai and Co. (1911) 35 Bom. 196 where the learned Chief Justice points out that an award, though enforceable as a decree, is not in fact a decree but remains an award though the award is given the same status as a decree for the purpose of enforcement. Mr. Bannerjee on behalf of the respondents contends that the award is nothing more than a debt on which a suit can be filed, and comes within the definition in Section 3, T.P. Act, of the words 'actionable claim.' The applicant in October 1937 assigned the money due to him under the award to a third party and Mr. Bannerjee further contends that if an award is an actionable claim, then under Section 130, T.P. Act, the transfer of his rights by the applicant has conferred upon the transferee all the rights and remedies of the applicant, and that the transferee alone is entitled to execute. On behalf of the applicant reliance is placed on Jasoda Deye v. Kirtibosh Das (1891) 18 Cal. 639 where it was held that the person appearing on the face of the decree as the decree-holder is entitled to execution, unless it be shown by some other person under Section 232, Civil P.C. which corresponds with Order 21, Rule 16 of the present Code, that he has taken the decree, holder's place. Order 21, Rule 16 provides that where a decree is transferred by assignment in writing or by operation of law the transferee may apply for execution of the decree to the Court which passed it, and for the applicant it is contended that although the transferee may apply for execution yet the present applicant who is the person on the record as the decree-holder has a right to execution subject to any application which the transferee may make.

5. It appears from the affidavit in reply that this application for the execution is made with the knowledge and consent of the transferee and that he has no objection to the application or to the execution being effected by the present applicant. Section 15, Arbitration Act, provides that an award on being filed in Court shall be enforceable as if it were a decree of the Court, and although it is true that an award is not a decree yet it appears to me clear that Section 15, Arbitration Act, has directed that an award though not a decree may yet be enforced as though it were a decree and so entitled the holder to proceed by way of execution. In Gladstone Wyllie & Co. v. Joosub Peer Mahomed & Co. : AIR1924Cal117 Greaves J. held that when under the provisions of the Arbitration Act, the Legislature provided that an award on being filed was enforceable as if it were a decree of the Court, it intended that all the provisions of the Code of Civil Procedure applicable to the execution of decrees should apply to an award so filed. The award in this case has been filed and the applicant is entitled to execution as prayed. The result is that although an award must be distinguished from a decree the right to execute as though it were a decree is specifically retained by the Legislature under Section 15, Arbitration Act, and the holder of the award is entitled to execute it although he may have transferred his rights under the award to a transferee. The transferee has the right to come in under Order 21, Rule 16 should he so desire. In this case the transferee has not come in and the applicant is within his rights in applying for execution.

6. In view of the statements made in para-graphs 14 and 15 of the affidavit in support of this application by Rai Anath Nath Bose there will be an order as prayed in Col. 10 of the tabular statement. The respondents had given an undertaking not to deal with the properties pending the hearing of this application. There is some fear apparently that they may deal with the equity of redemption in the mortgaged properties. As they are unwilling to renew the undertaking there will be an injunction restraining them from dealing with the property to the prejudice of the applicant. The applicant may add his costs of this application to his claim. Certified for counsel.


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