DILIP KUMAR GHOSH Vs. ASHIM KUMAR GHOSH

JUDGEMENT

(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 :-

(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. "