ANATH NATH BOSE Vs. MONMOTHA NATH BOSE

JUDGEMENT

(1.) This is an application for execution of an award dated 27 May 1929 which was filed in this Court on 30 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 1/3 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 15 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 7 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 8 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 7 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 8 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.