Calcutta High Court (Appellete Side)
(Prasanta Biswas & Anr vs Maitreyee Das & Anr.) on 2 August, 2022
11
02.08.2022
Ct. No. 32
rrc
FA 110 of 2018
with
IA No. CAN 1 of 2017 (Old No. CAN 2275 of 2017)
with
IA No. CAN 2 of 2022
(Prasanta Biswas & Anr. Vs. Maitreyee Das & Anr.)
Mr. Supratick Syamal
Mr. Rajarshi Mitra
.... For the appellants
Mr. Subrata Dey
Mr. Tarak Nath Halder
.... For the respondent no. 1
The present appeal has been preferred challenging the
judgment and decree dated 29th April, 2016 passed by the
learned Civil Judge, Senior Division at Sealdah, District
South 24-Parganas in a partition suit being Title Suit No.
27 of 2008. In connection with the present appeal, an
application for injunction being CAN 2275 of 2017 and an
application under Order XXII Rule 4A of the Code of Civil
Procedure being CAN 2 of 2022 have been preferred.
Mr. Syamal, learned advocate appearing for the
appellants submits that the partition suit was filed by
Maitreyee Das against her step-mother, namely, Seema
Das. The share in the suit property was subsequently
purchased by the appellants from Seema Das and they
contested the suit by filing written statement.
He submits that during pendency of the present appeal,
the appellants got information that Seema Das had expired
on 23rd December, 2019 but they were not aware of the
legal heirs of the deceased and as such, the application
being CAN 2 of 2022 has been preferred praying for leave
under Order XXII Rule 4A of the Code.
Mr. Dey, learned advocate appearing for the respondent
no. 1 submits that he has no knowledge about the death of
Seema Das and no death certificate of Seema Das has been
produced by the appellants.
Since the factum of death of Seema Das is not
established, no order is required to be passed in the
application under Order XXII Rule 4A of the Code and the
said application being CAN 2 of 2022 is, accordingly,
disposed of.
Mr. Syamal submits that the appellants are in
possession of the suit property. The Partition Commissioner
has already been appointed and unless the interim order,
as prayed for, is granted, the appellant would suffer serious
prejudice.
Prima facie, an arguable case has been made out by the
appellants and as such we direct that the Partition
Commissioner would be at liberty to proceed with the
commission work. However, no final decree shall be passed
till the disposal of the present appeal.
The application for injunction being CAN 1 of 2017
(Old No. CAN 2275 of 2017) is, accordingly, disposed of.
Let the hearing of the appeal be expedited.
As Mr. Halder, learned advocate has entered
appearance on behalf of the respondent no. 1, service of
notice of appeal upon the said respondent is dispensed
with.
The appellants are directed to put in the requisites for
effecting service of notice of appeal upon Seema Das within
two weeks from date.
Lower Court Records be called for through Special
Messenger at the cost of the appellants. Such costs shall
be deposited within two weeks from date.
Immediately, after arrival of the Lower Court Records,
the office shall examine the same and, if found complete,
shall issue notice of arrival of Lower Court Records to the
learned advocates appearing for the appellants.
The appellants are directed to prepare requisite
number of informal paper books-printed, typewritten or
cyclostyled, as the case may be, out of Court, within four
weeks from the date of service of notice of arrival of Lower
Court Records and to file the same after serving a copy
upon the learned advocate appearing for the respondents.
All formalities regarding preparation of paper books are
dispensed with but Mr. Syamal, learned advocate for the
appellants is directed to incorporate all the relevant
documents in the informal paper books.
Liberty to mention after filing of paper books.
(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)
