 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Civil Revision Application No. 101 of 2008 (Smt. Kamlabai wd/o Govindrao Deshpande & anr. Vs. Shri Anant Govindrao Deshpande & anr.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. A.V. Khare, Adv. for the applicants. Mr. Anil S. Mardikar, Adv. for R-1. Mr. H.R. Dhomale, Adv. for R-2. CORAM : Smt. Vasanti A. Naik, J. DATE : 17 th February, 2009 Heard the learned counsel for the parties. By this civil revision applicant, the applicants challenge the order passed by the 2nd Joint Civil Judge, Junior Division, Warora, on 10/10/2008, rejecting the application filed by the applicants under the provisions of Order VII Rule 11 of the Code of Civil Procedure. The trial Court had held that it had jurisdiction to entertain the present suit. The respondent no.1 is the original plaintiff. The plaintiff had filed a suit for partition and separate possession of his share in the suit property. According to the plaintiff,  the property was received by the defendants and the plaintiff as legal heirs of one Govindrao Deshpande in arbitration proceedings, in terms of the Award. It was the case of the plaintiff that the property was the joint property of the plaintiff and the defendants, as two other sisters of the plaintiff had relinquished their shares, during the arbitration proceedings. According to the plaintiff, each party had 1/4th share in the suit property. The defendant no.1 filed an application under the provisions of Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint on the ground that the trial Court did not have jurisdiction to try the suit in view of the provisions of Section 32 of the Arbitration Act, 1940. According to the defendants, the Arbitrator had partitioned the properties in three shares; Narayan and Madhaorao, the brothers of Govindrao, who had died during the arbitration proceedings, and the legal heirs of Govindrao i.e. the plaintiff and the defendants. According to the defendants, the plaintiff was basing his claim on the strength of the Award. It was the case  of the defendants that the plaintiff was, in fact, trying to give effect to the Award passed by the Arbitrator and the suit was filed for enforcement of the Award and hence the same was not tenable in view of the provisions of Section 32 of the Act of 1940. The trial Court, however, after hearing the parties and after considering the Award and the provisions of the Arbitration Act, 1940, rejected the application filed by the defendants, by holding that the Court had jurisdiction to entertain the suit. Shri Khare, the learned counsel for the revision-applicants, submitted that the suit was instituted by the plaintiff for effecting the Award. It was also submitted on behalf of the applicants that in any case, it was clear that the plaintiff was seeking the enforcement of the Award and, therefore, the suit was expressly barred by the provisions of Section 32 of the Arbitration Act, 1940. The learned counsel for the revision applicants relied on the decision in the case of Narbadabai & ors. Vs. Natverlal Chunilal Bhalakia & anr. reported in AIR 1953 Bombay 386, to substantiate his submission  that the expression “effect of the award” is wide enough to cover a suit to enforce an award. Shri Anil Mardikar, the learned counsel for the respondent no.1, supported the order passed by the trial Court on 10/10/2008, and submitted that the trial Court rightly held that the Court had jurisdiction to entertain the present suit. According to the learned counsel for the respondent no.1, the plaintiff had not raised any question about the existence or validity of the arbitration agreement. The learned counsel for the respondent no.1 then submitted that the plaintiff was also not seeking to give effect to the Award passed by the Arbitrator and the trial Court rightly held that the plaintiff was not trying to enforce the Award. The leaned counsel for the respondents submitted that the suit was for partition and separate possession and for grant of permanent injunction and the case reported in AIR 1953 Bombay 386 could not be made applicable to the facts of this case. The learned counsel for the respondents sought for the dismissal of the revision.  I have considered the submissions made on behalf of the parties, and have perused the order dated 10/10/2008. On a reading of the provisions of Section 32 of the Arbitration Act, 1940, it is clear that a suit is barred only in a case the plaintiff challenges the existence, effect or validity of the arbitration agreement or Award. Such was not the case here and hence the trial Court rightly dismissed the application filed by the defendants. The plaintiff in this case was definitely not challenging the existence, effect or validity of the arbitration Award. An Award was passed by the Arbitrator awarding three shares to Narayanrao, Madhaorao and the legal heirs of Govindrao. The plaintiff being the legal heir of Govindrao, was merely seeking a partition of that property which fell to the share of Govindrao by the arbitration Award. The plaintiff was not seeking the enforcement of the Award in this case and, therefore, the decision reported in AIR 1953 Bombay 386 cannot be made applicable to the facts of the case. The trial Court rightly held that the suit property was allotted to the share of the  plaintiff as well as the defendants by the arbitration Award and not to the defendant no.1 alone and hence, the plaintiff had rightly instituted a suit for seeking partition and separate possession of his share in the suit property. The plaintiff was not challenging the arbitration Award or decree and hence the provisions of Section 32 of the Arbitration Act, 1940 were inapplicable to the facts of the instant case. There is no error whatsoever in the order dated 10/10/2008 and it cannot be said that the said order suffers from any illegality or material irregularity. In the result, the civil revision application is dismissed with no order as to costs. The issue pertaining to the limitation would, however, be open. JUDGE RMP