SARKAR AND SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(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 :-