Calcutta High Court (Appellete Side)
Sukumar Pradhan vs Sriman Panchanan Gayen And Others on 23 June, 2021
Daily List 18 .
Bpg.
June 23,
C.O. No.876 of 2021
(Via Video Conference)
Sukumar Pradhan
Versus
Sriman Panchanan Gayen and others
Mr. Anindya Bose,
Mr. Ashok Kumar Singh,
Mr. Zeeshan Haque.
...for the petitioner.
Despite service, none appears on behalf of
the opposite party nos.1 and 2 when the matter is
called on for hearing.
The affidavit-of-service filed today indicates
that the copies could not be served on the opposite
party nos.3 and 4 since their door was locked. Be that
as it may, since substantial notice has been effected
on the absentee opposite parties by virtue of service
on the opposite party nos.1 and 2 (all of whom are
part of the same family and reside together), keeping
in mind the urgency of the petitioner's prayer, the
revisional application is taken up for ex parte hearing.
The petitioner contends that the petitioner is
the executor of a Will and relies on Section 211, read
with Section 213, of the Indian Succession Act, 1925
for the proposition that the property has vested in the
executor. Such position is corroborated in the
judgment cited by the learned counsel for the
petitioner, reported at (2009) 10 SCC 223 (FGP Limited
vs. Saleh Hooseini Doctor and another).
The petitioner filed a suit for declaration and
permanent injunction. In connection with the suit,
an application for temporary and ad interim
injunction was also filed seeking injunction
restraining the opposite parties from dispossessing
the plaintiff from the suit property forcibly, from
causing damage and wastage to the suit property as
well as creating third party interest therein
In so far as possession is concerned, apart
from the averments in the plaint and injunction
application, there is nothing before this Court at the
present juncture to arrive at a factual finding as
regards who is in possession of the suit property.
However, the reasons given by the appellate court for
refusing the injunction sought, being primarily the
pendency of the probate proceeding, is not valid for
the purpose of refusing injunction, since the property
is deemed in law to have vested in the executor till
probate is granted. The executor, by initiating a
probate proceeding, has shown his bona fides with
regard to the grant of probate.
As such, the petitioner has made out a
strong prima facie case for grant of injunction at least
regarding change of nature and character and
creating third party interest in respect of the suit
property.
In such view of the matter, C.O. 876 of 2021
is allowed, thereby setting aside Order No.3 dated
January 19, 2021 passed by the Additional District
and Sessions Judge, Fourth Fast Track Court at
Barasat, District- North 24 Parganas in Miscellaneous
Appeal No.06 of 2021, arising out of Order No.2 dated
December 21, 2020 passed by the Civil Judge (Senior
Division), Second Court at Barasat in Title Suit
No.629 of 2020. The opposite parties are restrained
from changing the nature and character of the suit
property as well as from creating any third party
interest and/or encumbrance with regard to the suit
property till disposal of the appeal, bearing
Miscellaneous Appeal No.06 of 2021.
The trial court as well as both parties shall
act on the communication of the learned advocate for
the petitioner and/or on server copy of this order,
without insisting upon prior production of a certified
copy.
There will be no order as to costs.
Urgent website certified copies of this order, if
applied for, be given to the parties upon compliance of
all formalities.
(Sabyasachi Bhattacharyya, J.)
