Judgement

Appeal (No. 106 of 1931) from an order of the High Court (December 14, 1930), reversing an order of the third Subordinate Judge of Hooghly (June 29, 1929), and directing that an application by the respondent for execution of a decree should be entertained as an application for execution of an award.

facts relevant to the appeal appear from the judgment of the Judicial Committee.

Law Rep. 60 Ind. App. 71 ( 1932- 1933) Jnanendra Mohan Bhaduri V. Rabindra Nath C hakravarti

225

1932. Nov. 22, 24, 25. De Gruyther K.C. and Pringle for the appellants.

Dunne K.C. and Parikh for the respondent.

[Reference was made to Jnanendra Mohan Bhaduri v. Annapurna Debi (( 1927) 31 C. W. N. 517.) and Ganendra Mohan Bhaduri v. Bhavani Charan Chakrevarti (( 1929) 34 C. W. N. 268.), both arising out of the same arbitration proceedings; also to the Indian Arbitration Act, 1899, ss. 11, 13, 15, 20, and to the Code of Civil Procedure, 1908, s. 89.]

Dec. 19. The judgment of their Lordships was delivered by

SIR DINSHAH MULLA. This is an appeal from an order of the High Court of Judicature at Fort William in Bengal, dated December 11, 1930, which set aside an order of the third Subordinate Judge of Hooghly, dated June 29, 1929, and directed that an application for execution of a decree presented by the respondent to the Court of the Subordinate Judge be entertained as an application for execution of an award.

The appellants are two of the executors of the will of Rajendra Lal Goswami, who died on August 21, 1917. The testators widow, Annapurna Debi (since deceased), was also an executrix of the will. The will is dated November 18, 1916, and it was admitted to probate on December 19, 1917.

The appellants are residuary legatees under the will. The respondent, the testators widow, and Radhika Lal Goswami are beneficiaries under the will.

Disputes arose as to the construction of the will, and by an agreement in writing, dated December 22, 1917, the matters in difference were referred to the sole arbitration of Byomkesh Chakravarti. The respondent was then a minor, and was represented by his father and natural guardian, Bhawani Charan Chakravarti.

The arbitrator made his award on July 29, 1918. The terms of the award more particularly affecting the respondent are contained in clauses 6 and 10. By clause 6 it was declared that the gift to the respondent of the properties mentioned in a schedule to the will was good subject to a charge for the payment of Rs. 13,063-12-0, and the executors were directed to make over the properties and all documents relating thereto, together with all accounts from the date of the death of the testator, to the respondents father or such other person as may be appointed guardian of his person and property. By the same clause, it was declared that the respondent was entitled to a life policy mentioned in clause 13 of the will. By clause 10, the executors were directed to make up an account of all sums received and spent by them, and to hand over the balance to such persons as were declared entitled thereto.

On August 1, 1918, the arbitrator filed his award in the High Court at Calcutta. The first appellant filed objections to the award, but the parties eventually came to terms, and the award was modified by two agreements. The only modification which might possibly have affected the respondent was that contained in clause 5 of the first agreement, by which it was provided that the properties should be handed over to the respondents father on his giving security for Rs. 12,000 to the satisfaction of the Registrar of the High Court, but this was not carried into effect.

The first appellant afterwards applied for a decree to the High Court at Calcutta, and on February 14, 1919, a decree was passed by consent of parties by which it was directed that " the said award as

Law Rep. 60 Ind. App. 71 ( 1932- 1933) Jnanendra Mohan Bhaduri V. Rabindra Nath C hakravarti

226

modified by the said terms of settlement ought to be carried int