Adhir Kumar Biswas vs Bhombal Biswas & Ors
2021 Latest Caselaw 1557 Cal

25.02.2021                             (Via Video Conference)
Court No. 02
Item No. DL - 22                           SAT 104 of 2020
snandy
                                                with
                                            CAN 1 of 2020
                                                with
                                            CAN 2 of 2020

                                         Adhir Kumar Biswas
                                                 Vs.
                                        Bhombal Biswas & Ors.

                   Mr. Debabrata Karan, Advocate
                   Mr. Sankha Suvro Roy, Advocate
                   Mr. Deboopriyo Karan, Advocate
                                                                 ......for the Appellant
                   Ms. Jyotsna Roy Mukherjee, Advocate
                                                   ......for the Respondents

Though the Stamp Reporter has indicated in his report that the instant appeal has been filed beyond the period of limitation and there is a delay of 91 days but we find that the limitation to file the appeal expires during the lockdown and immediately upon the resumption of the courts proceeding, the same has been filed on September 3, 2020 and, therefore, the said appeal is treated to have been filed within the period of limitation.

The report of the Stamp Reporter should be ignored.

The Office is directed to categorize the instant appeal as FMAT instead of SAT.

The appeal shall be heard on the following substantial questions of law;

i) Is it necessary for the plaintiff/appellant to seek for declaration of the purported deed of sale executed through the constituted attorney to be bad, void and illegal, if the right, title and interest in respect of the said property has been declared in an earlier suit in favour of

the plaintiff/appellant?

ii) Whether the purchaser through or constituted attorney can acquire any right, title and interest in respect of the immoveable property after the declaration of right, title and interest in an earlier suit which remained binding between the parties until the decree passed in an earlier suit is set aside by a Court?

CAN 1 of 2020

This is an application for stay of operation of the impugned judgment and order dated February 27, 2020 passed by the first appellate Court remanding the matter to the trial Court for fresh hearing.

Learned Advocate for the appellant submits, if the said proceeding is not stayed, it would cause irreparable loss and injury and may render the instant appeal infructuous.

Learned Advocate for the respondents opposes the stay application. It is submitted by her that there is no point involved in the instant appeal and the order of remand has been correctly passed by the first appellate Court.

Considering the submissions advanced by the respective Counsel and since we have already admitted the appeal, if the suit is allowed to be proceeded with, it may render the instant appeal infructuous in the event, the same is disposed of.

In view of the above, there shall be a stay of all further proceedings in Title Suit no. 50 of 2005 pending before the Third Court of Civil Judge (Junior Division), Krishnanagar, Nadia, till the disposal of the instant appeal.

The application being CAN 1 of 2020 is thus allowed.

Let the Lower Court Record be called for by Special Messenger at the cost of the appellant. The appellant is directed to put in the Special Messenger Cost for bringing the Lower Court Record within one week from date.

Upon deposit of such cost, Office shall bring the Lower Court Record by Special Messenger within a week. After arrival of the LCR, the department shall examine the same and if found complete, shall put a seal in this regard. The department shall ensure that the LCR arrives to this court within one week from the date of deposit of the Special Messenger Cost.

The appellant shall prepare eight copies of informal paper books - printed, typewritten or cyclostyled, as the case may be - out of court, within a period of eight weeks from the date of service of notice of arrival of the Lower Court Record. All other formalities relating to preparation of Paper books are dispensed with.

It goes without saying that all the relevant documents and papers which are required for adjudication of the dispute in the appeal, shall be included in the paper book.

After the LCR is found complete, the department shall serve a notice upon the learned Advocate for the appellant, under Rule 12 Chapter IX of the Appellate Side Rules, within a week therefrom.

In default of compliance as directed hereinabove, the order of stay passed by this Court shall stand automatically recalled.

Since the respondents have entered appearance

through Ms. Jyostna Roy Mukherjee, learned Advocate, who undertakes to file Vakalatnama on behalf of them, leave is granted to her to file the same within a week from date. In the event, the Vakalatnama is filed within the stipulated period, the appeal shall be treated ready as regard service.

After the completion of all the formalities, liberty is granted to the respective parties to pray for early listing of the matter for final disposal.

(Harish Tandon, J.)

(Kausik Chanda, J.)